USCIS Now Treats Adjustment of Status as ‘Extraordinary’ Relief

A Radical Shift in How USCIS Treats Adjustment of Status

On May 22, 2026, USCIS issued a Memorandum of Law titled “Adjustment of Status is a Matter of Discretion and Administrative Grace, and an Extraordinary Relief that Permits Applicants to Dispense with the Ordinary Consular Visa Process” and a concurrent press release in a push to change the legal and factual backing to reframe adjustment of status – the process of applying for a green card while inside the United States – as an “extraordinary form of relief.” The agency claims that foreign nationals should expect to be required to leave the country and apply for permanent residence through a U.S. consulate abroad.

Such a policy would be a sharp break from how the law has worked for decades.

The policy is not only a drastic departure from how permanent residence has been adjudicated, depending on how it is enforced, but it may also be contrary to the Immigration & Nationality Act, the statute Congress wrote, passed, and was signed into law by the President. According to the US Constitution, a President must faithfully enforce the law; a President, however, does not have the power to unilaterally change the law. Depending on how this manifests itself in adjudications, it will surely face court challenges. Nonetheless, until a judge rules on its legality, USCIS may apply it to your case. You need to prepare accordingly.

What USCIS Actually Said in This Memo

The press release tells officers that “aliens seeking adjustment of status must do so through consular processing via the Department of State outside of the country.” Adjustment inside the U.S. is now treated as an “extraordinary form of relief.”

USCIS Spokesman Zach Kahler put it bluntly:

“From now on, an alien who is in the U.S. temporarily and wants a Green Card must return to their home country to apply, except in extraordinary circumstances.”

The memo singles out students, workers, and visitors. That is because all such visas have an inherent non-immigrant intent. Individuals with such a stay, USCIS says, “should not function as the first step in the Green Card process.”

The Bottom Line: If you are on an F-1, H-1B, B-1/B-2, or similar visa, USCIS is signaling that you should expect to leave the U.S. to get your green card – unless you can prove your case is extraordinary.

Note what USCIS did not do. The agency did not change the law. The Immigration and Nationality Act (INA) still authorizes adjustment of status inside the country. Only USCIS’s posture changed.

Why This Framing Is Legally and Practically Suspect

Section 245 of the INA spells out a clear pathway to adjust status inside the U.S. Congress did not write it as a rare favor. It is a standard route, used by hundreds of thousands of applicants every year.

Treating that route as “extraordinary” contradicts the structure and history of the statute. Although Courts have long held that adjustment of status “was not designed to supersede the regular consular visa-issuing process or to be granted in non-meritorious cases,” Matter of Blas, Interim Decision No. 2485, 15 I&N Dec. 626 (B.I.A. 1976). In many cases, the agency and courts have consistently recognized adjustment as a routine remedy for eligible applicants.

USCIS admits the real motive. The agency says the change “reduces the need to find and remove those who decide to slip into the shadows” after a denial. It also “frees up limited USCIS resources.” Administrative convenience does not overcome the requirement of faithful application of the law.

The practical risks of forcing people abroad are serious:

• Unlawful presence bars. If you spent more than 180 days out of status, leaving the U.S. triggers a 3- or 10-year bar on re-entry.
• Consular delays. Interviews abroad can take 6 to 18 months — longer in some posts.
• Limited appeals. A consular officer can refuse your visa with little explanation and almost no review.

Key Insight: We expect this policy to be challenged in court. But litigation takes years. Plan your case as if USCIS will apply this policy immediately.

How This Could Affect You If You’re on a Visa

These groups are the most likely to face the impact of this policy: 

F-1 students marrying a U.S. citizen. The traditional path was simple: marry, file Form I-485, and adjust to a green card without leaving school. Under this memo, USCIS may push you to consular processing instead. If your F-1 status lapsed even briefly, departure can trigger an unlawful-presence bar.

Visitors (tourists) and other nonimmigrants. The memo names you explicitly. USCIS does not want your visit “to function as the first step in the Green Card process.” Even a clean family or employment petition may now face aggressive questions about your intent at entry.

The common thread: leaving the U.S. is not always safe. A misstep on status, a long absence abroad, or a refused visa can lock you out for years.

NOTE: H-1B or L workers with employer sponsorship. These non-immigrant visas have a statutory dual intent, meaning they can have both non-immigrant and immigrant intent. As a result, even the Memo acknowledges that these individuals may fall outside the Memo’s intent. However, it affords examination officers greater ability to scrutinize these cases as well. Expect heightened scrutiny, more Requests for Evidence, and pressure on the consular process. That can break the H-1B-to-green-card timeline your employer planned around.

Discretion and the Totality of Circumstances

The memo instructs USCIS officers to consider the totality of the circumstances, including violations of nonimmigrant status conditions or parole terms; immigration violations; fraud or misrepresentation; and, in general, conduct inconsistent with visa or parole purpose; family ties, moral character, and other positive equities. 

If the USCIS denies an Adjustment of Status application based on an unfavorable exercise of discretion, the denial notice must now include a written analysis identifying the positive and negative factors considered and explaining why the negative factors outweigh the positive ones.

What To Do Before You File Anything

Do not assume you can simply “adjust later” without legal advice. The statute has not changed overnight. USCIS’s use of discretion has. That changes strategy.

Audit your status now. Check your visa type, expiration date, any prior unlawful presence, and any pending petitions. The question is no longer just Am I eligible? — it involved a more complicated analysis. 

Contact Oltarsh & Associates to review your status, your green card options, and whether your case can realistically still adjust in the U.S. — or whether consular processing is the safer route.

The law has not been rewritten. The rules of the game have.

Frequently Asked Questions