On May 21, 2026, US Citizenship and Immigration Services (USCIS) issued a new policy memo that upends decades of established practice in how green card applications are processed.
Up until now, foreign nationals lawfully and physically present in the United States on temporary visas – such as skilled workers, students or visitors – have typically been permitted to apply for permanent residence (i.e., a “green card”) through Adjustment of Status (AOS) by filing Form I-485, rather than departing the country for immigrant visa processing at a US consulate abroad. While applicants have always been required to satisfy eligibility requirements and remain subject to discretionary review, AOS has long been a standard and widely used immigration process.
The new policy guidance may change that.
What changed?
The memo is presented as a reminder to USCIS officers of their discretionary authority in adjudicating AOS applications. It instructs them to determine whether the facts of a particular case support approving the application in the United States or whether the applicant should instead be required to seek permanent residence through consular processing abroad.
Though USCIS discretion in an AOS adjudication is not new, the renewed emphasis on immigrant visa processing at a US consulate abroad as the standard green card pathway, plus the agency’s characterization of the AOS process as both a “matter of discretion and administrative grace” and a grant of “extraordinary relief” from consular processing, are significant departures from years of USCIS policy and practice.
Further clarification
After some initial confusion and alarm from the regulated community following the issuance of the memo, a Department of Homeland Security (DHS) spokesperson clarified to several news outlets that no blanket ban is intended. Rather, cases providing clear economic benefit or national interest (e.g., high-skilled workers, essential employees) will “likely” still be allowed to adjust status domestically, while others may be directed to consular processing on a case-by-case basis.
The DHS emphasized that the law underpinning the AOS process remains unchanged, calling the memo a “reminder” of existing discretionary authority.
Nevertheless, uncertainty remains over how rigorously officers will apply these standards and what types of applicants might face greater scrutiny or denials. Further, immigration attorneys expect legal challenges if the new guidance is used to deny qualifying applicants purely on discretionary grounds.
Why it matters for employers
Before the policy change, more than half of new green card holders each year have been approved through AOS rather than through a consular office abroad. Consequently, employers have experienced fewer disruptions to the work of key foreign national employees already in the country, and there have been fewer impacts to continuity of work authorization and long-term workforce planning.
While AOS remains an accessible pathway to permanent residence, the new guidance may make the already stringent adjustment process more demanding, particularly if an applicant has a history of interactions with law enforcement, immigration status violations, unauthorized employment, temporary entries followed by adjustment or other facts USCIS may view as weighing against approval. Employers may need to reassess their green card strategies and plan for longer timelines and potential disruptions associated with consular processing as a result.
How employers should prepare
In light of the new AOS policy memo, there are several steps employers can take to prepare for its implementation:
- Identify employees who are relying on pending AOS applications for work authorization, employees approaching visa maximums and any cases with potential adverse factors that may receive heightened scrutiny.
- Ensure strict compliance with nonimmigrant status requirements and begin employees’ green card processes earlier.
- For upcoming filings, consult with immigration counsel to determine whether AOS or consular processing is the better approach, taking into account each employee’s circumstances, risk profile and timeline.
- Strengthen AOS filings by developing a strong, documented discretionary record of positive equities.
- For employees whose AOS applications may be at risk, consider contingency plans in the event of a denial, including consular processing fallback strategies, potential status extensions and coverage for employees required to travel overseas for processing.
With employers and other immigration stakeholders awaiting additional category-specific guidance that USCIS has indicated it intends to issue, Brightmine will continue to monitor developments and provide updates as the practical impacts of the AOS policy memo become clearer.
