By Sharon Lieberman, Esq. | Lieberman Law Group | EB-1A and Family-Based Immigration Attorney, Hackensack, NJ
If you have a pending green card application, what USCIS did this week affects you. Here is what happened and what you need to do.
On May 22, 2026, USCIS issued a shocking and surprising policy memorandum 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.” The memorandum now characterizes adjustment of status as an exceptional form of relief that most applicants will only receive at the discretion of the U.S. government. Although it is not clear when the policy goes into effect, it appears to be effective already, and therefore touches the hundreds of thousands of adjustment applications already pending at the agency.
The policy memorandum suggests that most noncitizens should leave the United States and process for immigrant visas at consulates abroad rather than adjust status inside the United States, framing this as the intent of Congress when the Immigration and Nationality Act (INA) was enacted. The practical message to government officers deciding adjustment applications is unmistakable: when in doubt, deny and tell the applicant to leave the country.
The policy change affects nearly every category of green card applicant. Employment-based and family-based filers, EB-1A and other self-petitioners, and dependent applicants all fall within its scope. It singles out noncitizens who entered on nonimmigrant visas or pursuant to parole, asserting that these individuals were admitted for a temporary period, that Congress expected them to depart when their authorized purpose ended, and that they should not be permitted to adjust status in the U.S. Staying in the United States and seeking to adjust, the memo argues, “contravenes these Congressional expectations.” That framing recasts millions of lawful, statutorily eligible applicants as people improperly avoiding the consular process.
This memorandum is hugely problematic, because it not only upends standard USCIS practice but actually goes against the law. The statute does not say what USCIS’s policy memorandum now claims it says. INA §245(a), codified at 8 U.S.C. § 1255(a), provides that “any alien who has been lawfully admitted for temporary resident status, such status not having been terminated, may apply for adjustment of status.” Congress used “may” to designate the benefit as discretionary (many immigration benefits are), but that does not make it “extraordinary relief.” Nothing in the text, the legislative history, or fifty years of agency interpretation supports the memorandum’s claim that the standard practice for anyone filing for adjustment of status should be to do so from outside the U.S. at a local consulate, as USCIS is now claiming.
The memorandum selectively cites case law it claims gives it the authority to act. It leans heavily on Matter of Blas, 15 I&N Dec. 626 (BIA 1974), for the “administrative grace” language but ignores precedential cases that directly state the opposite: Matter of Cavasos, 17 I&N Dec. 215 (BIA 1980), and Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981). Both cases hold that adjustment of status should generally be granted as a matter of discretion when the applicant is adjusting through an immediate relative. The memorandum ignores these decisions entirely, which under established principles of U.S. litigation it is not allowed to do. This policy memorandum is therefore built on incorrect law, and as a result, like a house of cards, it will not survive the litigation already being planned to contest it. A court-ordered injunction against applying this policy is likely.
Practically speaking, however, in the meantime, the consequences for applicants may be severe and immediate. Adjustment applicants are normally authorized to remain in the United States while their cases are pending, and they can apply for employment authorization and advance parole. Many may still be able to apply by providing evidence of “extraordinary circumstances” that prevent them from consular processing. However, this will add time, significant expense, and uncertainty to an already uncertain and stressful adjustment process. Combined with the current administration’s pause on immigrant visa issuance for nationals of 75 countries, the result for many applicants is disastrous. For nationals of backlogged countries like India and China, those interim authorizations to stay while adjustment is pending are not minor benefits. They are the difference between continuing a career and being forced out of the country for years.
For example, EB-1A self-petitioners often file Form I-140 and Form I-485 concurrently while inside the United States in O-1, H-1B, or other status. Under the new memo, even a fully qualified EB-1A petitioner with an approved I-140 may now be told that adjustment is unavailable and that consular processing is the expected route. For petitioners whose home countries are on the visa pause list, that instruction is not just disruptive, it is impossible to comply with. EB-1A strategy now requires anticipating this hostile posture at the front end, with a record that addresses both the merits of extraordinary ability and the appropriateness of adjustment as the vehicle. At Lieberman Law Group, Attorney Sharon Lieberman is adjusting to meet this new standard.
Humanitarian categories are no safer. The memo offers no carve-out for VAWA self-petitioners or SIJS recipients. In fact, SIJS status is automatically lost if the recipient leaves the U.S. The memorandum’s silence on how a SIJS recipient would consular process abroad if they lose status the moment they leave the U.S. is clear evidence of how little legal analysis has gone into this policy change.
In the meantime, anyone preparing to file should consult a licensed immigration attorney about timing, strategy, and how to structure their filing.
Quick Q&A: What Does This Mean for Me?
Q: I have a pending I-485. Should I withdraw it? No. Your application stays pending, and you keep your work authorization and advance parole eligibility while it is adjudicated. Withdrawal gains you nothing and costs you those protections.
Q: I was about to file. Should I wait? Talk to your attorney soon. The answer depends on your category, your country, your current status, and how the filing can be structured to address the memo head-on. Waiting indefinitely is not a strategy. Filing without thinking it through is worse. Speak to an AILA member attorney.
Q: I have an approved I-140 and I am inside the United States. What now? Your I-140 approval stands. The issue is the I-485. Your petition needs a record that makes the case for adjustment, not just eligibility for the underlying category.
Q: Should I leave the country and consular process instead? Not without legal advice. If you are from one of the 75 countries on the visa pause list, leaving could trap you abroad indefinitely. Even if you are not, departure can trigger unlawful presence bars and other consequences.
Q: Will this policy become new law? Almost certainly not in its current form. The memorandum conflicts with the plain text of the statute, ignores binding precedent cases, and skipped the rulemaking process the law requires. Expect litigation within weeks and expect at least one court to halt enforcement. The bottom line: this will be litigated, and soon.
If you have a pending adjustment application, an approved I-140, or an EB-1A petition in progress, the next few weeks matter. Strategy now will determine outcomes later. Lieberman Law Group, Attorney Sharon Lieberman represents EB-1A, business-immigration, family-based, SIJS, VAWA, and asylum clients in New York and New Jersey, and is currently advising clients across all of these categories on how the new USCIS memorandum affects their pending and planned filings.
⚖️ Schedule a consultation to discuss your specific situation.
📧 sharon@liebermanlawgroup.com 📞 (551) 209-1906
Sharon Lieberman is a solo immigration attorney at Lieberman Law, LLC in Hackensack, NJ, licensed in New York and New Jersey. Her practice focuses on EB-1A extraordinary ability petitions, SIJS, asylum, VAWA, and family-based immigration.
Disclaimer: This blog post is attorney advertising. The content is provided for general informational purposes only and does not constitute legal advice. Reading this post does not create an attorney-client relationship between you and Lieberman Law Group Attorney Sharon Lieberman. Every immigration case turns on its own facts, and the law in this area is changing rapidly. Do not act or refrain from acting based on anything in this post without first consulting a licensed immigration attorney about your specific situation. Prior results do not guarantee a similar outcome.
Share
Related posts
