Washington, D.C. USCIS isssues a policy memorandum on adjustment of status to legal permanent resident of the U.S. on Thursday, May 21, 2026 with a news released next day. It is unclear if the policy becomes effective right away or in future cases. From the wording of the memo its appears that the Trump Administration seeks to implement this new policy approach immediately in all new cases and might also apply that to currently pending applications too.
The memorandum (memo) addresses to U.S. Citizenship and Immigration Services (USCIS) officers and the public and cautions that adjustment of status under section 245 of the Immigration and Nationality Act (INA) is a matter of discretion and administrative grace not designed to supersede the regular consular processing of immigrant visas. USCIS claims this policy being consistent and longstanding and declares as a matter of general policy and expresses its intention to faithfully apply the statutes consistently with this understanding.
A grant of adjustment of status under section 245(a) of the INA is discretionary. An alien bears the burden of showing why administrative discretion should be favorably exercised. (citing Matter of Blas, 15 I&N Dec. at 629). Department of Homeland Security (DHS) evaluates applicants as to the exercise of “discretion and administrative grace,” on a case-by-case basis.
USCIS appears to make inferences that the Congress expected aliens paroled into the United States or admitted into the United States as nonimmigrants to depart rather than pursue adjustment of status but it is unclear how USCIS reconcile this with the legal provisions Congress created for adjustment of status and the Code of Federal Regulations provides further guidelines.
From another reading, USCIS appear to discourage foreign citizens to adjust status especially when the applicant had any violation of immigration laws. Such violations may act as adverse factors that the aliens may need “to offset…by a showing of unusual or even outstanding equities.” (citing Matter of Blas, 15 I &N Dec. at 641 (emphasis added). The absence of adverse factors, by itself, does not demonstrate such unusual or outstanding equities.
USCIS guides officers to exercise discretion weighing positive and negative factors about the nonimmigrant
Given the significant privileges granted to lawful permanent residents, USCIS reminds its officers that they must consider and weigh all the relevant evidence in the record, taking into account the totality of the circumstances to determine whether the alien is suitable for permanent residence and if approval of the alien’s adjustment of status application is in the best interest of the United States. Adjudicators must weigh all positive and negative factors, including family ties, immigration status and history, the applicant’s moral character, and any other relevant factor that bears on determining whether the alien warrants a favorable exercise of discretion.
Where consular processing is available to an alien based on the immigrant category in which he or she seeks adjustment of status, in determining whether the alien warrants a favorable exercise of discretion officers are to consider the consistent understanding of the courts and the BIA that adjustment of status is an extraordinary discretionary relief to the regular immigrant visa process and is an act of administrative grace.
What are those positive and negative factors about the nonimmigrant?
- Strong family ties in the U.S., a good immigration status and history, the applicant’s good moral character could be positive factors, among others.
- Any violations of immigration laws or the conditions of any immigration status held will be negative factor.
- Any ground for deportability could act as a negative factor.
- Current or previous instances of fraud or false testimony in dealings with USCIS or any government agency, whether an alien’s application for admission or parole violated the laws, regulations, and policies in place at the time, and any conduct of the alien after admission as a nonimmigrant or parolee inconsistent with the purpose of that nonimmigrant status or parole or with representations made to consular or DHS officers when applying for a visa, admission, or parole. (Negative factor)
- An alien’s failure to comply with the conditions of their nonimmigrant admission or parole and an alien’s failure to depart as expected are highly relevant to this analysis. (Negative factor). (USCIS says, it is particularly true when the failure is connected to the alien’s intention to reside permanently in the United States and the alien could have achieved that goal through the normal immigrant visa process).
USCIS reminds its officers that applying for adjustment of status is not inconsistent with simultaneously maintaining nonimmigrant status in a category with dual intent, however, maintaining lawful status in a dual intent nonimmigrant category is not sufficient, on its own, to warrant a favorable exercise of discretion. USCIS will still examine positive and negative factors.
What Next Updates are forthcoming
USCIS will carefully review the various pathways to discretionary adjustment of status as well as discrete populations of aliens applying for adjustment of status in the context of the consistent and longstanding finding that adjustment of status is an extraordinary matter of discretion and administrative grace not designed to supersede the regular consular processing of immigrant visas.
USCIS may provide policy guidance specific to certain adjustment of status categories or discrete populations of aliens to aid officers in identifying those applications that may or may not warrant this act of grace and exception to the regular consular process.
Background and consequences of new policy:
This new policy of USCIS is not substantially newer policy. USCIS always exercised its discretion when it comes to adjusting status in the U.S. Now USCIS will heighten the scrutiny, prefer consular processing over adjustment of status, will not generally grant the adjustment of status when they weigh positive factors in light of any negative factors in excercising discretion.
Consequences of this policy changes could cause a substantial delay for a nonimmigrant to obtain a legal permanent residency through Consular Processing abroad, causes a period of visa wait abroad, delays in National Visa Center (NVC), delays at USCIS in transferring case to NVC, etc.
This new policy likely may face judicial scrutiny and reviews too.
Legal provisions:
Section 245(a) of the Immigration and Nationality Act (INA)
Section 245 Adjustment of status of nonimmigrant to that of person admitted for permanent residence
(a) Status as person admitted for permanent residence on application and eligibility for immigrant visa
The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if
(1) the alien makes an application for such adjustment,
(2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and
(3) an immigrant visa is immediately available to him at the time his application is filed.
Code of Federal Regulations
8 CFR Part 245
8 Code of Federal Regulations 245- ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR PERMANENT RESIDENCE
8 CFR § 245.1 Eligibility.
(a) General. Any alien who is physically present in the United States, except for an alien who is ineligible to apply for adjustment of status under paragraph (b) or (c) of this section, may apply for adjustment of status to that of a lawful permanent resident of the United States if the applicant is eligible to receive an immigrant visa and an immigrant visa is immediately available at the time of filing of the application. A special immigrant described under section 101(a)(27)(J) of the Act shall be deemed, for the purpose of applying the adjustment to status provisions of section 245(a) of the Act, to have been paroled into the United States, regardless of the actual method of entry into the United States.
(b) Restricted aliens. The following categories of aliens are ineligible to apply for adjustment of status to that of a lawful permanent resident alien under section 245 of the Act, unless the alien establishes eligibility under the provisions of section 245(i) of the Act and § 245.10, is not included in the categories of aliens prohibited from applying for adjustment of status listed in § 245.1(c), is eligible to receive an immigrant visa, and has an immigrant visa immediately available at the time of filing the application for adjustment of status:
(1) Any alien who entered the United States in transit without a visa;
(2) Any alien who, on arrival in the United States, was serving in any capacity on board a vessel or aircraft or was destined to join a vessel or aircraft in the United States to serve in any capacity thereon;
(3) Any alien who was not admitted or paroled following inspection by an immigration officer;
(4) Any alien who, on or after January 1, 1977, was employed in the United States without authorization prior to filing an application for adjustment of status. This restriction shall not apply to an alien who is:
(i) An immediate relative as defined in section 201(b) of the Act;
(ii) A special immigrant as defined in section 101(a)(27)(H) or (J) of the Act;
(iii) Eligible for the benefits of Public Law 101-238 (the Immigration Nursing Relief Act of 1989) and files an application for adjustment of status on or before October 17, 1991; or
(iv) Eligible for the benefits of Public Law 101-238 (the Immigration Nursing Relief Act of 1989), and has not entered into or continued in unauthorized employment on or after November 29, 1990.
(5) Any alien who on or after November 6, 1986 is not in lawful immigration status on the date of filing his or her application for adjustment of status, except an applicant who is an immediate relative as defined in section 201(b) or a special immigrant as defined in section 101(a)(27) (H), (I), or (J).
(6) Any alien who files an application for adjustment of status on or after November 6, 1986, who has failed (other than through no fault of his or her own or for technical reasons) to maintain continuously a lawful status since entry into the United States, except an applicant who is an immediate relative as defined in section 201(b) of the Act or a special immigrant as defined in section 101(a)(27) (H), (I), or (J) of the Act;
(7) Any alien admitted as a visitor under the visa waiver provisions of 8 CFR 212.1(e) or (q), other than an immediate relative as defined in section 201(b) of the Act;
(8) Any alien admitted as a Visa Waiver Pilot Program visitor under the provisions of section 217 of the Act and part 217 of this chapter other than an immediate relative as defined in section 201(b) of the Act;
(9) Any alien who seeks adjustment of status pursuant to an employment-based immigrant visa petition under section 203(b) of the Act and who is not maintaining a lawful nonimmigrant status at the time he or she files an application for adjustment of status; and
(10) Any alien who was ever employed in the United States without the authorization of the Service or who has otherwise at any time violated the terms of his or her admission to the United States as a nonimmigrant, except an alien who is an immediate relative as defined in section 201(b) of the Act or a special immigrant as defined in section 101(a)(27)(H), (I), (J), or (K) of the Act. For purposes of this paragraph, an alien who meets the requirements of § 274a.12(c)(9) of this chapter shall not be deemed to have engaged in unauthorized employment during the pendency of his or her adjustment application.
Last updated May 22, 2026
Note: This news update should NOT be construed as a legal advice. Changes in immigration policies and procedures are complex and may require a consultation with an experienced immigration lawyer.
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