In Depth Analysis: USCIS’s May 21 Green Card Policy Memo on Adjustment of Status. Who May Be Affected, Who May Be Less Impacted, and How Should Applicants Respond?
- Lin Ding, Esq. | 丁琳律师
- May 28
- 6 min read
Keywords: U.S. immigration attorney, U.S. visa, USCIS, adjustment of status, I-485, AOS
On May 21, 2026, U.S. Citizenship and Immigration Services, USCIS, issued Policy Memorandum PM-602-0199, a major policy memo addressing adjustment of status, also known as I-485 or AOS. The memo has drawn widespread attention and concern among green card applicants in the United States. It sends a clear message: filing an I-485 in the United States is not automatically approved simply because the basic eligibility requirements are met. Adjustment of status remains a discretionary benefit, and USCIS officers may decide whether to grant it as a matter of discretion and administrative grace.
In response to this change, the American Immigration Lawyers Association, AILA, issued practice guidance on May 26, pointing out several legal concerns with the new policy. These concerns may become important arguments for future case strategy and possible challenges. This article explains, in plain language, why the policy changed, who may be affected, what may happen in practice, and how applicants should respond.
🌍The Core of the May 21 Memo: Three Major Changes in USCIS Review🌍
The May 21 document is a policy memorandum, not a new law passed by Congress. It is USCIS’s latest guidance for field officers on how to exercise discretion when reviewing adjustment of status applications. The main changes can be summarized in three points:
1. It Breaks the Assumption of “Default Approval”
In the past, many people believed that if an applicant had a clean background and no serious violations, AOS approval should generally be expected. The new memo makes clear that even if an applicant has no adverse factors, they may still need to affirmatively show positive factors supporting approval. In other words, USCIS may ask not only whether the applicant is eligible, but also whether the applicant deserves a favorable exercise of discretion.
2. It Treats Adjustment of Status as a Less Ordinary Pathway
USCIS again emphasizes that consular processing abroad is generally the regular pathway to obtain permanent residence. Adjustment of status inside the United States is being framed as a discretionary benefit that allows an applicant to complete the green card process without leaving the country and may require additional justification.
3. Officers Must Weigh Positive against Negative Factors, Raising the Practical Burden
USCIS officers must weigh the applicant’s positive factors against any negative factors. If the applicant has issues such as unlawful presence, a gap in lawful status, or other immigration history concerns, they may need to show unusual or outstanding equities to overcome those negative factors.
At the same time, if USCIS denies a case based on discretion, the denial notice must explain in writing how the officer weighed the positive and negative factors. Officers cannot deny a case based on discretion without providing a clear analysis.
🌍What Are Adverse and Positive Factors?🌍
The core of the new memo is how USCIS officers exercise discretion. If the adverse factors outweigh the positive factors, USCIS may deny the I-485 as a matter of discretion.
🔴 Adverse Factors
Unauthorized employment;
Criminal history;
Inconsistent records, such as inconsistencies in any immigration or consular applications;
Prior immigration status issues, including:
Prior violations of immigration status;
Failure to maintain lawful status;
Failure to depart the United States as required;
Prior fraud or misrepresentation in communications with USCIS or other government agencies; and
Concealed immigrant intent: for example, getting married or filing a green card application shortly after entering the United States within 90 days may raise concerns about preconceived intent.
🟢Positive Factors
If an applicant has the adverse factors listed above, the new memo requires stronger positive evidence to balance the case. Positive factors may include:
Family ties: Close relatives who are U.S. citizens or green card holders, especially where denial would cause extreme hardship to family members.
Good moral character: A long record of lawful residence in the United States, strong tax compliance records, and positive community involvement through volunteer work or charitable activities.
Economic contribution, public benefit, and national interest: Stable employer support, strong professional achievements, special skills, or evidence showing that the applicant’s green card approval would benefit the national interest of the United States or create meaningful economic value.
🌍Under the New Memo, Who May Be Most Affected and Who May Be Less Impacted?🌍
🚨 Higher Risk Applicants
Nonimmigrant visa holders, such as F-1 students, B-1/B-2 visitors, M-1 students, and individuals admitted through parole, may face higher risk if their records contain the adverse factors listed above.
🟡 Relatively Lower Risk Applicants
Dual intent visa holders, such as H-1B workers and L-1 executives or managers: The memo recognizes that maintaining H-1B or L-1 status while applying for permanent residence is generally permitted. If the applicant has maintained lawful status, worked lawfully, and has no immigration violations, the practical impact may be limited. However, simply maintaining H-1B or L-1 status does not mean that an I-485 application will automatically be approved.
Ordinary nonimmigrant visa holders or immediate relatives of U.S. citizens may also be less affected if they have a clean immigration history and truthful, consistent documentation. For example, if the applicant maintained lawful status throughout their stay, complied with immigration rules, and, in a marriage based case, has a solid relationship history and strong joint financial evidence with no signs of rushed marriage or rushed filing, he or she might be less impacted.
🟢 Categories That May Be Exempt or Less Directly Affected
According to AILA’s analysis, some categories are considered non-discretionary by law. If the legal requirements are met, USCIS must approve the application, and these categories should not be affected by the new discretionary standard in the same way. These categories include:
Refugee adjustment of status;
Certain beneficiaries under NACARA, HRIFA, LRIF, and similar laws.
Note: Asylee adjustment, as well as adjustment for victims of human trafficking or certain crimes under T or U visa categories, carries strong humanitarian considerations. These categories may also face limited practical impact from the new memo.
🌍The New Memo Does Not Change the Law or Prohibit Adjustment of Status🌍
The memo does not change the law. It also does not eliminate adjustment of status as a lawful pathway to permanent residence. Section 245 of the Immigration and Nationality Act still allows eligible individuals, including employment based applicants, family based applicants, and others, to obtain green cards through adjustment of status inside the United States.
The memo also does not prohibit higher risk applicants from filing AOS applications in the United States. However, it gives USCIS officers broader discretion when reviewing these applications. This may mean more detailed scrutiny, more Requests for Evidence, and more discretionary denials. As a result, applicants may need stronger supporting documents to show positive factors and explain why adjustment of status should be granted.
Important questions remain unanswered. For example, it is still unclear how USCIS field offices will weigh positive and negative discretionary factors in practice, or whether the policy will be applied consistently across different offices. As of the publication of this article, detailed operational guidance has not yet been issued by USCIS.
In essence, USCIS has not changed the law, but it has tightened its internal review standard. This indirectly raises the practical threshold for obtaining a green card through adjustment of status. Although the memo was issued recently, some attorneys have already reported that USCIS has begun using it during interviews and at the RFE stage.
🌍How Should Applicants Respond During This Uncertain Period?🌍
As review standards tighten, we encourage applicants to not rush to withdraw a case or change strategies out of anxiety alone. Employers and foreign national employees should remain calm and work closely with immigration counsel to take the following steps:
Review Record Consistency: Applicants should review all prior applications, travel records, and employment history. Resumes, tax records, LinkedIn profiles, and other public information should be consistent with documents submitted to USCIS to avoid credibility concerns.
Maintain the Underlying Status When Possible: During the I-485 process, applicants should try to maintain their existing H-1B, L-1, F-1, or other lawful status whenever possible.
Prepare Detailed Evidence Package in Advance: Applicants should prepare evidence of positive factors at the time of filing instead of waiting passively for an RFE. This package may include family ties, lawful residence history, tax records, employer support, professional achievements, community service, charitable activities, and evidence of economic benefit or national interest.
Evaluate Consular Processing: If adjustment of status inside the United States carries high risk, or if the applicant has a complicated immigration history, consular processing may sometimes be a more stable option after attorney review.
For applicants with status gaps or prior immigration issues, we recommend a detailed compliance review before AOS filing and prepare strong supporting evidence to strengthen the positive factors in the case. If you have a complex background, you should consult an experienced immigration attorney for an individualized case assessment.
If you have any questions, schedule a consultation with our professional immigration attorneys.
Disclaimer: This article is intended for general informational and educational purposes only and should not be construed as legal advice. Immigration cases are highly fact-specific, and each applicant’s circumstances may differ. Consult a licensed immigration attorney before making any legal or immigration-related decisions.
