Immigration Law
Meeting every requirement used to be enough to get your green card from inside the U.S. As of May 2026, it may not be.
If you filed — or are about to file — for a green card without leaving the country, you have probably seen the alarming headlines. The new USCIS memo on adjustment of status discretion says the agency will grant these cases "only in extraordinary circumstances." Officers are reportedly asking applicants at their interviews why they didn't just leave the United States and process abroad instead.
Here is the part the headlines buried, and the part that matters most: the memo did not change a single word of the law. The statute Congress wrote is fully intact. That gap — between the alarming press release and the actual legal authority — is exactly where your case can be protected.
I'm an immigration attorney at SG Legal Group, and I am still filing adjustment of status applications every week. Below is an honest breakdown of what the memo does, who is genuinely at risk, the questions officers are asking right now, and how to build a case that survives the new standard.
On May 21, 2026, USCIS issued Policy Memorandum PM-602-0199, 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." A day later, the agency announced it in the loudest possible terms, declaring it would grant adjustment "only in extraordinary circumstances." A USCIS spokesman told reporters that foreign nationals temporarily in the U.S. who want a green card would generally be expected to return home to apply.
Read the memo itself, and a calmer picture emerges. PM-602-0199 repeals no statute, eliminates no green card category, and adds no new eligibility requirement.
What it does is instruct officers on how to use the discretion they already hold under Section 245 of the Immigration and Nationality Act (INA) — the law that lets eligible people apply for a green card without leaving the country. The memo tells adjudicators to treat that relief as "extraordinary" and as an act of "administrative grace," and to weigh whether an applicant should instead be routed through the consular process abroad.
The press release and the memo, in other words, say two different things. By the end of that week, the Department of Homeland Security walked the announcement back partway, describing it as simply a reminder of the case-by-case discretion officers have always had.
If you want the full mechanics of how the process works, I've written a complete guide to Form I-485 adjustment of status. This article is about what changed.
For decades, discretion existed in theory but rarely decided a case. If you met the criteria and had a clean record, approval was close to a checklist — discretion was the box officers checked, not the question that sank you.
The memo changes the posture, not the law. It is an instruction to make discretion bite — to treat it as a live, decisive question. The practical translation: the burden has shifted onto you. Being eligible no longer means being approved; you must now affirmatively prove you deserve a favorable exercise of discretion. That is a documentation problem — and documentation problems are solvable.
Not everyone is equally affected. The memo lands hardest on people without an underlying work visa, and people with something in their history to explain.
This is the cruel irony of the memo. The group Congress has always protected most — immediate relatives of U.S. citizens — may be the most exposed at the discretionary stage, precisely because they often have no dual-intent work visa to fall back on and may have technically overstayed before marrying.
There is a powerful legal argument buried in that irony. Congress specifically chose, in INA § 245(c)(2), to forgive immediate relatives for certain status problems at the eligibility stage. The memo now invites officers to scrutinize that very same conduct at the discretionary stage. Using discretion to punish what Congress deliberately declined to bar is, in my view, both the sharpest risk for these families and one of the strongest arguments any legal challenge will make.
If you came in on a fiancé visa, the timing and status rules are their own minefield — I cover them in my K-1 visa to green card timeline.
If you significantly overstayed and are then forced to leave and apply from abroad, you can walk straight into the three- and ten-year unlawful presence bars — and find yourself locked out of the country you were trying to immigrate to. For this group, "just go process abroad" is not neutral advice. It can be a trap.
If you filed your I-485 while in a status that carries an intent-to-depart requirement — and could not maintain that status while your application was pending — expect heightened scrutiny under the memo's "you were supposed to leave" theory. These are some of the trickiest profiles under the new framework.
The news is not bad for everyone.
Employer-sponsored applicants on dual-intent visas like H-1B and L-1 stand on firmer ground, because those categories are built to allow immigrant intent. One caution: the memo expressly states that simply holding a dual-intent status is not, on its own, enough to earn a favorable exercise of discretion. It helps; it does not guarantee.
Employment-based adjustment carries its own wrinkles, too. Applicants who relied on the Section 245(k) exception to forgive a status lapse or a period of unauthorized work, for example, may draw more scrutiny now — I walk through those eligibility traps in my guide to EB-3 adjustment of status eligibility.
Non-discretionary categories are essentially untouched. If you are adjusting as a refugee or asylee, under the Cuban Adjustment Act, or under laws like NACARA, HRIFA, or LRIF, USCIS must approve your case once you meet the requirements — discretion never enters the picture.
And if you are the spouse of a U.S. citizen with no criminal record and no serious violations, your profile remains one of the strongest there is, under both frameworks. What has changed is not your odds — it is how much documentation you should bring to protect them.
Immigration attorneys across the country are reporting the same thing: officers are issuing requests for evidence and asking pointed new questions at interviews. If you have an interview coming up, prepare for some version of these:
Sit with that first question. A federal officer is asking a lawfully present person why they used the legal process Congress created for them. Knowing the question is coming is half the battle; the other half is having a documented answer, not an improvised one.
The memo directs officers to weigh the "totality of the circumstances." In plain terms, they put your negatives and your positives on a scale.
The factors counted against you
The factors counted in your favor
Now the single most important sentence in this article. The mere absence of negatives is not enough. The memo is explicit: to overcome a real adverse factor like an overstay, you must show "unusual or even outstanding equities." A clean-but-thin file no longer wins on its own. You have to build the positive side of the scale on purpose.
The memo's not-so-subtle suggestion is that you should just go process at a consulate. For many people that is the worse, riskier path. Staying to adjust keeps your work authorization through the employment authorization document (EAD) tied to your pending I-485, and it keeps your family together while the case is decided.
Consular processing hands enormous power to a single officer abroad. Those decisions generally cannot be appealed, you usually cannot have your attorney in the room, and if you triggered an unlawful presence bar by leaving, you may not be allowed back for years. That asymmetry is the real reason adjustment of status exists — and the real stakes of being pushed out of it.
This is where strategy matters, and where a good immigration attorney earns their fee. None of what follows is one-size-fits-all advice — it is a map of the moves available, and which ones fit depends entirely on your facts.
Build a discretion package. Don't leave the positive factors for the officer to discover. Assemble the evidence up front — proof of family ties and the hardship that separation would cause, tax and employment records, community letters, evidence of good moral character, and documentation of your economic contribution.
Get into a dual-intent status if you can. If you are in a non-dual-intent category you cannot reliably maintain, changing to a status like H-1B before you file — or before your case is decided — can meaningfully strengthen your footing.
Consider filing a legal brief with your application. This is the lawyer's craft. USCIS leans heavily on two Board of Immigration Appeals decisions, Matter of Blas and Matter of Mendez-Moralez, and both are distinguishable — Blas involved an applicant who lied and sought to abandon a spouse and children abroad (the Board itself signaled it would treat a genuine marriage to a U.S. citizen differently), and Mendez-Moralez concerned a different waiver entirely. A brief that distinguishes your facts from those cases — and cites favorable authority like Matter of Arai, and, for immediate relatives, Matter of Ibrahim and Matter of Cavazos (which hold that when the only negative is preconceived intent, the adjustment should generally still be granted) — can change how an officer sees your file.
Map the unlawful presence bars and waivers early. If there is any chance you could be pushed to apply abroad, understand the three- and ten-year bars and the waivers that address them now. The I-601A provisional waiver — which generally requires an approved I-130, no pending removal proceedings, and your physical presence in the U.S. — currently takes around two years. You do not want to start that clock late.
Protect a child's age under the CSPA. If a denial could cause a child to "age out" past 21 and lose eligibility, that is a serious equity an officer should weigh. Congress passed the Child Status Protection Act precisely to prevent that outcome, and it belongs in your case.
One quiet piece of good news: when an officer denies a case on discretionary grounds, the memo requires a written denial that lists the positive and negative factors and explains why the negatives won. That gives you a concrete target to challenge on a motion to reopen or reconsider — or through a federal court claim.
If any of this describes your situation, this is exactly the kind of case that should not be filed on autopilot. Reach out for an individualized review before you submit anything or walk into an interview. It is far easier to build the record correctly the first time than to repair it after a denial.
I'll be direct about where I stand, because you deserve a lawyer with a point of view.
Congress wrote adjustment of status into the INA in 1952. Before that, lawfully present people who wanted a green card had to leave the country, sit for a consular interview abroad, and hope to be readmitted. Congress found that system needlessly costly and cruel to families, and built a path to permanent residence from inside the U.S.
Over the seven decades since, Congress has returned to Section 245 repeatedly — by most counts more than twenty times — not to weaken it, but to refine and expand it. USCIS's own policy manual says the provision exists to promote family unity, economic growth, national security, and humanitarian resettlement. You do not amend a law that many times, across both parties, if you treat it as a disfavored accident.
A memo cannot change any of that. What it can do is raise the bar so high, and make the process so unpredictable, that a working statute becomes hard to use in practice. The law stays on the books; it just stops working as well. And the case-law foundation USCIS built it on is thin — a large part of why many of my colleagues and I expect this to be challenged in court.
In fairness, the agency frames this as a reminder of discretion officers have always had, and there are legitimate debates about enforcement, visa caps, and processing times. But this memo is not arriving in isolation — it is one more entry in a broader tightening of immigration adjudication through 2025–2026, alongside developments like the wave of visa revocations we have tracked. Patterns matter, and this is the pattern.
Yes — for most people, adjustment of status is still the right path, and I am still filing these cases. The memo did not close the door. It raised the threshold and added scrutiny.
What has genuinely changed is the preparation. If you have a clean record and a U.S. citizen spouse, move forward — with a stronger, better-documented file than you might have needed a year ago. If you have an overstay, a status violation, or no dual-intent visa, get a clear-eyed risk assessment first, because the wrong move could mean a denial and, in some cases, removal proceedings.
Every case turns on its own facts — and that is the actual reason two people in seemingly similar situations can get very different outcomes.
If you are navigating an adjustment of status case and want to understand your real options under the new standard, I'm here to help. Call SG Legal Group at 410-344-7100 or visit our contact page to schedule a consultation. Consultations are available in English, Russian, or Romanian.
Disclaimer: The information provided in this article is for general informational purposes only and does not constitute legal advice. Immigration laws and policies are subject to change, and individual circumstances vary. For advice specific to your situation, please consult with a qualified immigration attorney.
Oleg Gherasimov, Esq.
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