USCIS’ New Policy: Adjustment of Status from Outside the U.S.

By Maureen E. James - Skoler Abbott P.C.

June 2, 2026

On Friday, May 22, 2026, United States Customs and Immigration Services (USCIS) issued a policy memorandum (PM-602-0199) (the “Policy Memo”) which will drastically change the way that temporary visa holders currently present in the United States process their applications for an adjustment of status.  The Policy Memo advises those applicants who are seeking an adjustment of their visa status that they “must do so through consular processing via the Department of State outside of the country.”

Why is this policy a departure from the prior handling of adjustments of status?

Section 245(a) of the Immigration and Nationality Act (INA), states that “Any alien who has been lawfully admitted for temporary resident status…such status not having been terminated, may apply for adjustment of status….”  8 U.S.C. §1255(a).  Prior to the issuance of the Policy Memo, many temporary visa holders, such as those with H-1B visas, were eligible to continue working within the U.S. under that visa status while simultaneously pursing an adjustment of status to a permanent status, such as a green card.  This process would occur while the individual visa holder remained working within the U.S.

The Policy Memo takes the position that a temporary visa holder’s intent is to remain within the U.S. on a limited basis, for a specific purpose, and to return to their home country upon the expiration of their status.  “Congress, in establishing the nonimmigrant admission and parole processes, made it clear that aliens are expected to depart the United States when the purpose of their admission or parole has been accomplished.”  USCIS Spokesman Zach Kahler elaborated, stating:  “Nonimmigrants, like students, temporary workers, or people on tourist visas, come to the U.S. for a short time and for a specific purpose. Our system is designed for them to leave when their visit is over.  Their visit should not function as the first step in the Green Card process.” 

In taking this position, USCIS asserts under the INA, individuals should return to their home country to seek processing of a different status of visa, including those of a permanent nature.  There is no carve out for those who are currently working under temporary employment-based visas and provides an exception for processing within the United States only in “extraordinary circumstances”.  What constitutes “extraordinary”?  USCIS claims that evaluations will be performed on a case-by-case basis and there are no criteria or examples delineated within the Policy Memo.

What does this mean for those seeking an adjustment of status?

It appears that any changes to adjustment of status will affect several categories of visa holders, including those with employment or family-based visas.  The Policy Memo, as currently issued, fails to indicate how this change of position will affect current and future applications, or whether the intent of the Policy Memo is to change USCIS’s procedures currently or at a future date. 

For those seeking an adjustment of status, USCIS will be relying more heavily on a discretionary standard to scrutinize the intent of the visa holder.  The Policy Memo specifically states:

    “Where adjustment of status is in the discretion of USCIS, officers are reminded that they are to consider all relevant factors and information in the totality of the circumstances in exercising that discretion…  An alien’s failure to comply with the conditions of their nonimmigrant admission or parole and an alien’s failure to depart as expected are highly relevant to this analysis…  Adjudicators must weigh all positive and negative factors, including family ties, immigration status and history, the applicant’s moral character, and any other relevant factor that bears on determining whether the alien warrants a favorable exercise of discretion.”

How this analysis will affect current applicants remains to be seen but it is clear that the additional scrutiny that USCIS will be placing on each case will increase processing times.  This additional review will also likely increase USCIS’s use of requests for evidence to seek additional information regarding the application and the applicant, addressing areas such as those specifically mentioned in the memo – applicant’s family, status, history, character, intent.

Given the significant change USCIS seeks to make, and the lack of specifics surrounding those changes, it appears that litigation will likely be filed to challenge their interpretation of the INA and other policies.  In the meantime, employers who are concerned about how these changes may impact employees who may be or are currently seeking an adjustment of status are encouraged to stay apprised of announcements from USCIS and to consult counsel regarding their immigration questions.

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