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The law hasn’t changed: Adjustment of status is still a valid and legal pathway for applicants who are eligible to get a green card from within the US.  A USCIS policy memo does not have the power to rewrite federal law. What the memo may change going forward is how intensely officers scrutinize individual cases before granting approval.

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The USCIS recently released a memo framing adjustment of status as a ‘discretionary’ benefit rather than an automatic right.

Are you worried that USCIS will automatically deny more green card applications filed inside the United States? Don’t panic. We’ve summarized what the memo does and doesn’t change, as well as what that means for applicants.

But first: What does adjustment of status mean?

Adjustment of status allows certain foreign nationals to apply for lawful permanent residence (a green card) from inside the United States. Eligible applicants can file Form I-485 with USCIS instead of having to leave the country for an immigrant visa interview at a U.S. consulate.

This highly established process has long helped many marriage-based and employment-based applicants remain in the United States while their green card case is pending.

Did the memo change the legal standard for adjustment of status?

No. Adjustment of status has never been automatic. USCIS has long had the authority to deny an adjustment of status case even if the applicant technically qualifies.

Is the adjustment of status disappearing?

No. Contrary to what the memo’s title might imply, USCIS has not said that adjustment of status is disappearing.

Some commentary around the memo has made adjustment of status sound like an informal workaround by describing it as an ‘exception’ to the usual consular process. That’s simply not accurate. Adjustment of status exists because Congress created it as an option to expressly allow eligible applicants to apply for permanent residence from inside the United States. It’s been part of the legal immigration system for decades.

What does the memo say?

The memo is reminding USCIS officers to exercise discretion deliberately.

It is telling officers to look beyond the forms and ask whether an applicant has shown enough reason to be approved from inside the United States.

Note that nothing fundamental has changed. It has always been up to USCIS officers to determine if an applicant qualifies and deserves approval under the full record. The memo doesn’t make the adjustment of status discretionary for the first time.

Does this mean that applicants should choose consular processing instead?

Not automatically. For many applicants, particularly marriage-based and employment-based applicants, adjustment of status will still remain the right process.

Before you choose between adjustment of status and consular processing, have an attorney review your full immigration history from entry to the present. A lawyer can help you decide which process might give you the best chance of approval.

Who should be more careful now?

Does your record give USCIS any reason to hesitate? Be especially careful if you:

• Overstayed a visa
• Worked without authorization
• Gave inconsistent information on a prior immigration filing
• Were ever arrested

This doesn’t mean that you cannot adjust status, but it does mean that your application needs to address those problematic facts clearly.

Do positive facts still count?

Yes. The memo does not tell USCIS officers to look only for problems. Officers still have to review the full case before deciding whether to approve an adjustment of status.

Even if one part of your immigration history raises a concern, your application should not let that concern define the whole case. It should explain the issue and show the facts that weigh in your favor.

• Does your family life and work history show that you have built a stable life in the United States?
• Have you established a long record of following immigration rules?
• Did you enter the United States lawfully before applying for adjustment of status?
• Would leaving the United States for consular processing create serious hardship for your family?

Your filing should show why the stronger facts in your record outweigh the concern. Helpful evidence may include:

• Tax records
• Proof of steady employment
• Family documents
• Hardship evidence
• Court dispositions
• Rehabilitation records
• Letters that explain your role in your family or community

Does applying for a green card conflict with H-1B or L-1 status?

No. Dual intent still exists for H-1B and L-1 workers. Applying for a green card does not automatically conflict with those visa categories. That said, USCIS may still review your full immigration record before approving the adjustment.

What should you do next?

Before you file, walk through your immigration history from the day you entered the United States to now.

• How did you enter?
• Did you follow the terms of your visa?
• Did you ever work without authorization?
• Did you ever give USCIS information that could now raise questions?

If your case is already pending, do not rush to send USCIS extra documents just because the memo sounds alarming.

Speak with an immigration attorney first. They can review the filing and decide whether USCIS needs more explanation before you send anything else.

It’s still unclear how broadly USCIS will apply the memo in everyday adjudications, and some interpretations may face legal challenges.

If you’re worried about how the USCIS memo may affect your application, our immigration attorneys here at Berd & Klauss can review your case and explain how it may apply to your situation. Call 212-461-7152.