USCIS Updates AOS Policy: What This Means for Adjustment of Status Cases

On May 21, 2026, USCIS issued a policy memorandum emphasizing that Adjustment of Status (AOS) is a discretionary benefit and may be granted only in limited circumstances, rather than functioning as a routine pathway to permanent residence.

The memorandum reiterates legal principles that have existed in statute and case law. Adjustment of status is described as a form of relief that depends on a favorable exercise of discretion, even where an applicant satisfies the underlying eligibility requirements. It is not characterized as an automatic or guaranteed outcome.

The agency also emphasizes that consular processing remains the standard process for obtaining permanent residence. Adjustment of status is framed as an alternative option that may be appropriate only in certain cases, rather than the default process.

Under this guidance, officers are directed to evaluate applications based on the totality of the circumstances. This includes reviewing both potential concerns and favorable considerations in each case. Factors identified in the memo include:

• Negative considerations such as violations of immigration status, unauthorized employment, fraud or misrepresentation, failure to comply with terms of admission, or failure to depart as required
• Positive considerations such as family ties in the United States, long-term residence, evidence of good moral character, and other humanitarian or equitable factors

The guidance indicates that applicants carry the burden of demonstrating why a favorable exercise of discretion is appropriate in their case, including why processing within the United States should be allowed instead of consular processing abroad.

The memorandum further states that when an application is denied on discretionary grounds, officers must provide a written explanation outlining the factors considered.

USCIS has described this position as consistent with longstanding interpretations of immigration law, including the concept that individuals admitted to the United States in a temporary status are generally expected to depart and complete immigrant visa processing abroad unless there are circumstances that justify an in-country process.

At the same time, several important questions remain unresolved. USCIS has not provided clear guidance on the timing or scope of implementation. In particular:

• There is no confirmation whether the policy applies only to newly filed applications or also to cases that are already pending
• It is unclear whether any applicants or categories will be grandfathered under prior practices
• Additional category-specific guidance has been referenced but not yet issued
• We also anticipate that nonimmigrant visa holders in dual intent categories, such as H-1B and L-1, may be subject to comparatively less scrutiny in demonstrating extraordinary circumstances, although this has not been confirmed and remains unclear at this time.

Although USCIS has not explicitly addressed retroactive application, the memo is framed as a clarification or reminder of existing law rather than a new rule. Based on that framing, it is possible that the policy may be applied broadly, including to cases that are already pending.

From a practical standpoint, this suggests that applicants and practitioners may begin to see:

• Increased discretionary review across adjustment of status filings
• Additional requests for evidence or notices of intent to deny focusing on discretionary factors
• Greater emphasis on explaining why adjustment of status is appropriate in a given case instead of requiring consular processing

USCIS has indicated that further policy guidance may be issued for specific categories or groups of applicants. However, the scope and timeline for any additional clarification remain uncertain.

Overall, this development highlights that adjustment of status is a discretionary form of relief that may be granted in limited circumstances, and that consular processing continues to be treated as the primary pathway to permanent residence in most cases.

We are continuing to monitor developments closely and will provide updates as additional guidance becomes available.