On May 21, 2026, USCIS issued a policy memorandum emphasizing that adjustment of status applications filed through Form I-485 under INA § 245 is not guaranteed, but a discretionary form of relief that allows certain applicants to obtain lawful permanent residence (green card status) from inside the United States rather than through the immigrant visa processing at a United States consulate abroad. The memorandum sets a higher standard of adjudication and requires a showing of extraordinary circumstances for granting adjustment of status and signals that, where consular processing is available, USCIS expects adjudicators to treat in-country adjustment as the exception to legal permanent residency processing rather than the rule.
Factors USCIS Says Officers Should Weigh
USCIS officers must evaluate the totality of the circumstances and balance favorable and adverse factors. According to USCIS, relevant concerns may include violations of immigration law or immigration status, unauthorized employment, failure to maintain the terms of admission or parole, fraud or false testimony, conduct inconsistent with representations made to consular or DHS officers, immigration history, family ties, moral character, and any other facts bearing on whether approval would be in the best interests of the United States. Importantly, the memo also states that the absence of negative factors by itself does not establish the unusual or outstanding equities needed to justify favorable discretion in many cases.
Who Could Be Most Affected
Among nonimmigrant visa holders, the groups USCIS is most likely to find an absence of extraordinary circumstances are those whose underlying nonimmigrant visa status is single-intent or closely tied to a temporary purpose of admission. That includes B-1/B-2 visitors, F-1 and M-1 students, and J-1 exchange visitors, as well as some parole-based entrants and other temporary admissions where USCIS may view a later effort to seek permanent residence through Form I-485 as more difficult to reconcile with the original reason for entry. The memorandum identifies conduct inconsistent with the purpose of admission, status violations, overstays, and unauthorized employment as adverse discretionary considerations. By contrast, applicants in recognized dual-intent classifications such as H-1B and L-1 visa holders are somewhat better positioned because these visas allow for dual intent, i.e. immigrant intent upon entry into the United States is expressly permitted in those categories, although the memorandum still suggests that lawful maintenance of dual-intent status alone will not automatically satisfy the heightened discretionary standard.
Who Is Exempt
The policy memo’s heightened discretionary standard is less likely to affect categories where adjustment is non-discretionary or tied to special statutory protections, including certain humanitarian and victim-based cases such as refugee adjustment, asylee adjustment, Violence Against Women Act self-petitioners, trafficking victim (T) adjustment, crime victim (U) adjustment, Special Immigrant Juvenile cases, and other special programs or classifications for which the adjustment framework includes statutory exemptions, waivers, or mandatory provisions.
Consular Processing
If USCIS denies Form I-485 Application to Adjust Status, then an applicant must pursue permanent residence through immigrant visa processing at a U.S. consulate abroad. Once the underlying immigrant visa petition is approved (Form I-30 or Form I-140), then the foreign national must file Form I-824 to request that USCIS transfer the approved immigrant petition to the National Visa Center (NVC).
The NVC acts as the pre-processing agency for most family-based and employment-based immigrant visa cases, collecting fees, forms and supporting documents before scheduling an interview at the appropriate U.S. embassy or consulate. Depending on the visa category, some applicants may also need to wait until a visa number becomes available before the case can move forward.
- Case creation and fee payment. After petition approval, the applicant or attorney receives NVC instructions and pays the required immigrant visa and, where applicable, affidavit of support fees through the consular processing system.
- Form DS-260 and supporting documents. The applicant completes the online immigrant visa application, Form DS-260, and submits required civil documents such as birth certificates, marriage records, police certificates, and court records, along with certified translations where required. In most family-based cases and some employment-based cases, the petitioner or sponsor must also submit Form I-864, Affidavit of Support, with financial evidence.
- NVC review and interview scheduling. Once the NVC determines that the required documents have been submitted, it works with the appropriate post to schedule an immigrant visa interview when an appointment is available and, if applicable, when the priority date is current. The applicant then receives an interview appointment notice.
- Medical exam and interview preparation. Before the interview, the applicant must complete a medical examination with an embassy-approved panel physician, obtain any required vaccinations, and gather the original civil documents to bring to the interview. Applicants must also follow post-specific instructions for courier registration or local document handling.
- Consular interview and decision. At the interview, a consular officer reviews the applicant’s identity, eligibility, supporting documents, and any inadmissibility issues. The officer may issue the immigrant visa, request additional evidence, place the case in administrative processing, or refuse the visa if the applicant is ineligible or inadmissible.
- Travel to the United States and admission as a permanent resident. If the immigrant visa is approved, the applicant may travel to the United States and seek admission as a lawful permanent resident at a port of entry. After admission, the physical green card is typically produced and mailed in the United States.
The processing time from filing Form I-824 petition to immigrant visa issuance could be more than one year and as long as several years depending on the U.S. consulate. The foreign national is not guaranteed entry into the United States on another nonimmigrant visa that does not allow for immigrant intent, such as F-2 visitors and F-1 students. However, foreign nationals seeking entry on a dual-intent nonimmigrant visa (allowing for immigrant intent), such as H-1B and L-1 visas, will not be denied admission into the United States despite having immigrant visa cases pending.
Travel Ban and Likely Effect on Consular Processing Times
A further practical consequence of being pushed from adjustment of status into consular processing is that applicants may face additional delays or even effective ineligibility for visa issuance if they are nationals of countries covered by the current presidential travel ban or pause on immigrant visa issuance for nationalities at a high risk of U.S. public benefits reliance. Even when a case can still proceed to the National Visa Center for document collection or interview scheduling, the Department of State has stated that applicants subject to the proclamation may attend scheduled interviews but may nevertheless be found ineligible for visa issuance or admission unless an exception applies. In practice, this means that some cases may stall after an interview, be refused under the proclamation, or remain subject to heightened vetting and administrative processing, which can make already lengthy immigrant visa timelines even longer and less predictable.
The current travel ban, noted at the US Department of State’s Travel.State.Gov site, imposes a restriction on immigrant visas from abroad on nationals of certain countries as well as individuals applying with travel documents issued or endorsed by the Palestinian Authority (while visa applicants from some of these countries may be allowed entry with certain nonimmigrant visas). These countries include Afghanistan, Angola, Antigua and Barbuda, Benin, Burkina Faso, Burma, Burundi, Chad, Cote d’Ivoire, Cuba, Dominica, Republic of the Congo, Equatorial Guinea, Eritrea, Gabon, The Gambia, Haiti, Iran, Laos, Libya, Malawi, Mali, Mauritania, Myanmar, Nigeria, Niger, Senegal, Sierra Leone, Somalia, South Sudan, Sudan, Syria, Tanzania, Togo, Tonga, Turkmenistan, Venezuela, Yemen, Zambia, and Zimbabwe.
Because implementation can vary by post and because exceptions are limited and highly fact specific, applicants and counsel should consult the U.S. Department of State’s official guidance titled Suspension of Visa Issuance to Foreign Nationals to Protect the Security of the United States on Travel.State.Gov for the current list of affected countries, the scope of the suspensions, and any announced exceptions or processing instructions. That guidance is especially important in cases where a person may still be able to apply, attend an interview, or seek visa issuance through an exception, dual-national passport, or another category not covered by the suspension.
The Department of State also recognizes several limited exceptions to the January 1, 2026, suspension. As described in the Department’s guidance, the suspension does not apply in the same way to certain diplomatic and official visa categories, immigrant visas for ethnic and religious minorities facing persecution in Iran, dual nationals who apply with a passport from a nationality not subject to the suspension, certain Special Immigrant Visas for U.S. government employees under 8 U.S.C. § 1101(a)(27)(D), participants in certain major sporting events, and lawful permanent residents. In addition, the Department of State and the Department of Homeland Security may determine on a case-by-case basis that a person’s travel serves the U.S. national interest. Because these exceptions are narrow and can be interpreted differently depending on the applicant’s facts and the consular post, the most reliable source is the Department of State’s Travel.State.Gov page titled Suspension of Visa Issuance to Foreign Nationals to Protect the Security of the United States, together with the related Presidential Proclamation 10998 notice.
The following countries are subject to the immigrant visa processing pause for extra public charge vetting:
Afghanistan, Albania, Algeria, Antigua and Barbuda, Armenia, Azerbaijan, Bahamas, Bangladesh, Barbados, Belarus, Belize, Bhutan, Bosnia and Herzegovina, Brazil, Burma, Cambodia, Cameroon, Cape Verde, Colombia, Cote d’Ivoire, Cuba, Democratic Republic of the Congo, Dominica, Egypt, Eritrea, Ethiopia, Fiji, The Gambia, Georgia, Ghana, Grenada, Guatemala, Guinea, Haiti, Iran, Iraq, Jamaica, Jordan, Kazakhstan, Kosovo, Kuwait, Kyrgyz Republic, Laos, Lebanon, Liberia, Libya, Moldova, Mongolia, Montenegro, Morocco, Nepal, Nicaragua, Nigeria, North Macedonia, Pakistan, Republic of the Congo, Russia, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Senegal, Sierra Leone, Somalia, South Sudan, Sudan, Syria, Tanzania, Thailand, Togo, Tunisia, Uganda, Uruguay, Uzbekistan, and Yemen.
There are exceptions to the public charge immigrant visa processing pause for dual nationals applying with a valid passport of a country that is not listed above and for children being adopted by Americans.
Extreme Hardship Waivers for Bars to Admission
Another important consequence is that some applicants who cannot complete the green card process through adjustment of status and instead must leave the United States for consular processing abroad may be barred from admission to the United States based on prior unlawful presence in the United States. In general, unlawful presence refers to time spent in the United States after the expiration of a period of authorized stay or time spent in the country without being admitted or paroled. For many applicants, this issue becomes critical only when they depart the United States, because departure after a sufficient period of unlawful presence can trigger statutory bars to readmission.
Under INA § 212(a)(9)(B), a person who departs the United States after accruing more than 180 days but less than one year of unlawful presence may be subject to a three-year bar to admission, while a person who departs after accruing one year or more of unlawful presence may be subject to a ten-year bar. As a result, an applicant who is denied adjustment of status or advised to pursue immigrant visa processing abroad may discover that leaving the United States creates a new obstacle to returning as a lawful permanent resident. In many such cases, the individual will need to obtain a waiver of inadmissibility before an immigrant visa can be issued, which can add significant delay, expense, and uncertainty to the process.
For some applicants, one possible strategy is filing either Form I-601A (provisional unlawful presence waiver) or Form I-601 (unlawful presence waiver). Form I-601A waiver allows certain immigrant visa applicants who are physically present in the United States to request advance forgiveness of the three-year or ten-year unlawful presence bars before departing for a consular interview. The I-601 waiver is filed for applicants who are outside the United States. For purposes of both waivers, the key hardship inquiry focuses on a qualifying relative, which generally means the applicant’s U.S. citizen or lawful permanent resident spouse or parent. A child is not, by itself, a qualifying relative for the waiver, although hardship to a child may still be relevant to the extent it affects the qualifying spouse or parent.
In deciding whether a qualifying relative would suffer extreme hardship, USCIS looks at the totality of the circumstances and asks whether the hardship would be substantially beyond the ordinary consequences of family separation or relocation. The agency commonly considers factors such as serious medical conditions, mental health concerns, financial dependence, loss of employment or business support, educational disruption, caregiving responsibilities, family ties in the United States, conditions in the country of relocation, and any other facts that show unusual hardship. USCIS also analyzes both possible scenarios: whether the qualifying relative would remain in the United States without the applicant or instead relocate abroad with the applicant.
Even where extreme hardship is shown, the waiver remains discretionary. That means USCIS may still weigh favorable circumstances against negative facts in the record before deciding whether relief should be granted. Favorable considerations may include strong family ties, long residence in the United States, evidence of rehabilitation, hardship to the qualifying relative, and other equitable factors, while adverse considerations may include immigration violations, misrepresentations, criminal history, or other conduct bearing on whether the applicant merits a favorable exercise of discretion. In short, the adjudication involves both a hardship determination and a broader balancing of the applicant’s positive equities against any adverse factors.
Key Takeaways
For employers, families, and intending immigrants, it should be emphasized that adjustment of status should no longer be assumed to be a routine alternative to consular processing whenever an applicant is otherwise eligible to file Form I-485. USCIS is applying a stricter discretionary standard and expect applicants to show why their circumstances are exceptional enough to warrant permanent residence from within the United States. Because the memo leaves room for future category-specific guidance, applicants and attorneys should assess discretionary risk carefully, document favorable equities thoroughly, and evaluate whether consular processing may be the safer or more predictable route in some cases.
Please contact Attorney Kornfeld for more information or a consultation about this memorandum.