USCIS Adjustment of Status Policy — What You Need to Know

USCIS Adjustment of Status Policy — What You Need to Know

May 26, 2026

KEY POINT: The law has not changed. You can still file Form I-485 (adjustment of status). However, USCIS will now scrutinize applications more carefully. Your case record and positive factors will matter.

On May 21, 2026, USCIS issued Policy Memorandum PM-602-0199. It does not eliminate adjustment of status. It instructs officers to treat I-485 approval as a discretionary benefit — not an automatic right — and to weigh each applicant’s full history when deciding whether to approve.

Situation 1: You have a pending I-485 and no status violations

You are in a relatively strong position. No immediate action is required.

What you should do:

•      Keep maintaining your current lawful nonimmigrant status.

•      Avoid unnecessary international travel.

•      Begin gathering documents showing your compliance: pay stubs, tax returns, status approvals, employer letters, family ties.

Situation 2: You are preparing an I-130 or I-140 — Adjustment vs. Consular Processing

This is the decision that most requires individual analysis. Please consult with us before making any choice.

There is no universal answer here. The right path depends on your specific visa history, family circumstances, travel needs, employment situation, and overall equities. The factors below are not a checklist to self-diagnose — they are the considerations our office will work through with you to reach the most protective strategy for your individual case.

Factors that generally support filing I-485 in the U.S.:

•      H-1B or L-1 status — these are “dual intent” visas, meaning pursuing a green card is legally consistent with your temporary status. This remains the strongest posture under the new memo.

•      Continuous lawful status with no violations, unauthorized work, or criminal history.

•      Strong positive equities: long-term U.S. residence, U.S. citizen or permanent resident family members, stable employment or business, education, and community ties.

•      Any accrued unlawful presence — departing the U.S. could trigger a 3- or 10-year reentry bar under INA § 212(a)(9)(B), which may make adjustment the only safe option regardless of other factors.

Factors that may support consular processing:

•      Entry on a B-2 visitor visa, or entry into the U.S. shortly before the green card process began — these facts may raise preconceived immigrant intent concerns that need to be addressed.

•      F-1, OPT, or STEM OPT status — particularly where there are any gaps, work authorization issues, or SEVIS record concerns. A clean long-term record is very different from a case with compliance gaps.

•      TN status — temporary nonimmigrant intent is a fundamental requirement of TN.

•      Any prior overstay, status gap, or unauthorized employment (unless immediate relative discussed in Situation 3).

•      Any facts surrounding the purpose or timing of entry that may require explanation.

Many clients will have a mix of both favorable and cautionary factors. The presence of a scrutiny factor does not automatically mean consular processing is the right choice — it means that factor must be understood, addressed, and weighed against the full picture of your case. Equities matter, and a well-prepared record can make a meaningful difference.

 

Situation 3: You have a pending I-485 as an immediate relative of a U.S. citizen — with a status violation

Immediate relatives (spouse, parent, or unmarried child under 21 of a U.S. citizen) retain important statutory protections that the memo does not eliminate.

Under INA § 245(c), immediate relatives may remain eligible for adjustment even with an overstay or unauthorized employment, as long as you were lawfully admitted or paroled at your last entry. The new memo does not change this.

However, USCIS will now weigh past violations more heavily in its discretionary review. We recommend preparing a positive factors packet that documents:

•      The bona fide family relationship with your U.S. citizen relative.

•      The reason for any status lapse and mitigating circumstances.

•      Hardship to your U.S. citizen family member if the application is denied.

•      Tax compliance, employment history, community ties, and absence of criminal history.

 

Situation 4: Does your visa type matter?

Yes — significantly. The following is a quick reference by visa type:

H-1B / L-1 — Risk Level: Lower

Dual intent — pursuing a green card is legally consistent with your status. Strongest candidates for I-485 under the new memo.

H-4 / L-2 Dependents — Risk Level: Lower

Same dual-intent benefit as the principal H-1B/L-1 holder.

O-1 — Risk Level: Moderate

Not a dual-intent visa, but strong professional record supports favorable equities. Case-by-case review required.

E-2 — Risk Level: Moderate

Long-term business/employment record helps, but E-2 is not dual-intent.

R-1 Religious Worker — Risk Level: Moderate

Lawful long-term religious work record is favorable, but R-1 is not dual-intent. Document compliance carefully.

F-1 / OPT / STEM OPT — Risk Level: Higher

Compliance record is critical. Immigrant intent at entry is a scrutiny point. Clean OPT/STEM OPT record with employer sponsorship is more favorable.

TN — Risk Level: Higher

Temporary intent is fundamental to TN status.

B-2 / Tourist — Risk Level: Highest

Preconceived immigrant intent is the key risk. Timing between entry and I-485 filing will be closely scrutinized.

 

Your Immediate Action Steps

•      Maintain your current lawful nonimmigrant status and avoid any violations.

•      Avoid international travel unless necessary.

•      Start gathering positive factors documents: tax returns, pay stubs, status approvals, employer letters, family ties and community involvement evidence.

We are actively monitoring USCIS implementation, litigation, and further agency guidance. We will update you as developments warrant.

Judy Chang Law Firm, National Immigration Law Firm
Copyright© Judy J. Chang, Esq. All rights reserved. 5/26/2026
The information contained in article is provided for general information only and should not serve as a substitute for legal advice.
http://www.judychanglaw.com / contact@judychanglaw.com