For decades, foreign nationals lawfully present in the United States on temporary visas—such as skilled workers, students, or visitors—have had a well-established option. When their priority date became current, they could apply for a green card without ever leaving the country. That option, known as Adjustment of Status (AOS), has long been a cornerstone of U.S. immigration practice. As of May 22, 2026, it may no longer be available to most.
On May 22, 2026, USCIS issued an announcement heavily restricting the grounds on which one can file an I-485 adjustment of status (AOS) for lawful permanent residency in the U.S. (green card), shifting the default pathway toward consular processing of immigrant visas overseas. The announcement referred to a new agency memo dated May 21, 2026.
The New Legal Standard
In a move that contradicted decades of convention allowing individuals to file for their permanent residency while physically in the U.S., the USCIS announced that it is a matter of extraordinary discretion and administrative grace that should be reserved for only special circumstances. USCIS advised its Officers to weigh and balance the importance of people who are on a non-immigrant visa to depart the U.S. versus various equity and hardship factors to allow them the convenience of adjusting status while in the U.S.
Factor Analysis
While USCIS did not elaborate on what specific criteria encompass the “balancing test” Officers should use, it is likely that the factors include:
- Type of Visa the applicant is on (i.e., short-term visitor or short-term worker versus a long-term worker)
- The applicant’s underlying non-immigrant classification and whether it is considered “dual-intent” (such as an H-1B or L-1 visa)
- Length of lawful residence in the United States, status held and conduct during that residence
- Past compliance with immigration laws (maintaining lawful status versus overstay).
- Whether the applicant is of good moral character
- The applicant’s employment position and their importance to the U.S. economy
- Continuity of employment for the U.S. employer
- Impact on the applicant’s school-age children
- The existence of any special health concerns
- Other special humanitarian considerations
- The need to preserve the integrity of the non-immigrant visa system
Guidance to Employers and Individuals
Ideally, USCIS will provide additional clarity in the weeks and months to come. At present, in advance of any further detail by USCIS, we offer the following guidance to those who may be impacted:
- Already Filed AOS and Pending: For those individuals who have filed a Form I-485 prior to this new agency directive and whose application is pending at USCIS, if they are on an H-1B or L-1 dual intent visa, presumably USCIS will still approve those cases. Those with a more attenuated circumstance should be prepared to fully document why the agency should exercise favorable discretion and grant the AOS.
- Safety Measure Going Forward With an I-140 Filing: When an I-140 immigrant petition is filed (most frequently after DOL certifies a PERM Labor Certification) but also for I-140 petitions involving extraordinary ability, outstanding professors and researchers, multinational managers, national interest waivers, etc., it may be prudent to generally designate that the foreign national will consular process rather than adjust status in the U.S.
- Mechanics of Consular Processing: Checking the box for consular processing on an I-140 petition does not preclude the foreign national from later filing an I-485 adjustment of status in the U.S. when the priority date is current, if it is safe to do so. However, once the I-140 is approved, USCIS will forward the file to the National Visa Center (NVC). Counsel will then have to pay the government filing fees and contact the NVC at least once a year; otherwise, the NVC will close the case. So, consular processing requires more monitoring, but it is safer at this point.
- I-824 Request to USCIS to Forward File to the NVC and U.S. Consulate: If an approved I-140 was designated for adjustment of status and the applicant is not confident that they have a compelling case for adjustment of status, counsel will need to file an I-824 with USCIS requesting that the file is transferred to the National Visa Center for consular processing. This could delay obtaining one’s green card by at least one (1) year due to USCIS processing times.
- EAD Work Permits for Spouses: H-4 spouses already receive EAD work permits once the H-1B spouse has an approved I-140. So, in terms of work authorization, they should face less inconvenience under the new policy. However, because H-4 EAD renewals no longer allow for automatic extensions of work authorization, beneficiaries are advised to continue to file their renewal applications as early as possible in their renewal windows. Similarly, L-2 and E-3 spouses already have inherent work authorization incident to status.
- Delays in Work Authorization: Spouses of a TN or O-1 who were hoping to get an EAD from an early AOS filing will be disadvantaged by designating consular processing. Also, visitors on a B-1, many F-1 students, J-1s, and those on an E-2 will also be affected and could encounter longer delays in obtaining their green cards.
- For Some, I-485 May Be the Only Option: There may be special situations where one may have no choice but to file an I-485 adjustment of status. Applicants doing so should be prepared to defend it by citing, among other things, employment, family considerations, etc.
- AOS Pending and No Other Options: Similarly, those that are already I-485 pending at USCIS as of May 2026, and whose immigration status conflicts with the memo, may have no choice but to continue with the adjustment of status application and defend the merits. For example, a TN visa holder whose I-485 is pending or denied would not be able to renew their TN work authorization since it is not a dual intent visa.
- Travel Ban Countries: If one’s passport is from a country that currently has an immigrant visa travel ban, that would weigh in favor of adjustment of status and focusing on preparing a robust supporting rationale.
- Risk of Getting Stuck Overseas With Administrative Processing: A particular concern is that, after traveling abroad to attend an immigrant visa interview at a U.S. Consulate, the individual could get stuck in that country for weeks or months due to administrative processing, background and security checks, etc. Furthermore, for those with spouses and children, that would mean pulling children out of school in the U.S. during this time. It also raises questions whether, and for how long, one could work remotely from abroad while waiting for their immigrant visa.
- Litigation and Possible Court Injunction: Potentially, court action could enjoin some or all of the memo. Plaintiffs will argue that they had a reliance interest in the agency’s past conduct and the sudden shift violates their due process rights. USCIS will counter that adjustment of status has always been discretionary. The outcome of any such proceeding—and its ultimate impact on the memo—is uncertain.
This is a massive shift in immigration policy and, hopefully, with more time will come more clarity. Those details may take several months to arrive. For more information, please contact your Sheppard attorney or the authors.