The USCIS Memo on Adjustment of Status

Last updated: 05/27/2026

On May 22, 2026, USCIS issued a memorandum regarding applications for adjustment of status. While the memo misstates and violates the law on many accounts, we at Vrapi Weeks have already developed a strategy to counterbalance the effects of this memo so that our clients can continue to file for adjustment of status and secure lawful permanent residence in the United States.

What is Adjustment of Status?

Until 1952, anyone who wanted to immigrate to the United States to become a permanent resident had to return to their home country and apply for what is called an immigrant visa. This caused many disruptions to families, so in 1952, Congress passed a new law that created the adjustment of status process. Certain foreign nationals who are in the United States and meet certain conditions may apply to adjust their status in the United States instead of traveling abroad to apply for an immigrant visa at a US consulate. The adjustment of status application is a discretionary process. That means that an applicant must not only show that they are eligible for this process, but also that they deserve this benefit. In a discretionary determination, an adjudicating officer must weigh both the positive factors and the negative factors of the case and decide which way the scale tips. Positive factors include family ties to the United States, length of residence in the United States, employment or business ties to the United States, etc. Negative factors include criminal history, immigration law violations, fraud, etc. This balancing of factors in the discretionary determination is not new and has been a part of the adjustment of status process since its inception in 1952.

The benefits of adjustment status are several, and they are important. First, the entire process can be done in the United States. This minimizes family separation, or in the case of employment-based immigration, business/employment disruptions. Second, while the application for adjustment of status is pending, the applicant can also apply for a temporary work permit and temporary travel document to allow them to work and travel outside of the United States. Third, because the entire process happens within the United States, there are a lot of due process protections for applicants, such as being entitled to representation by an attorney during the interview and several layers of review and appeals if the initial application is denied for whatever reason.

What Is Consular Processing?

If a foreign national is outside of the United States or inside of the United States but in eligible to apply for adjustment of status, the only way for them to obtain permanent residence is to apply for an immigrant visa at the US consulate in their home country. For those aspiring immigrants (outside of the US or ineligible for adjustment), this still remains a decent process to follow. However, for those who are both eligible for adjustment of status and consular processing, it is generally better to apply for adjustment of status than consular processing. There are several reasons for this. First, it minimizes family separation in family-based cases. The consular process can take anywhere between 2 to 5 years to complete. During that whole time, a couple would either have to live apart and have to pay for two households or the US citizen would be forced to go and live temporarily outside of the United States. Second, many times those who are in the United States have severe legal consequences if they were to depart the United States for the Consulate process. This leads to much more work and additional cost to accomplish the same thing that can be accomplished in a much simpler way through the adjustment of status process. Third, there are almost zero due process protections at a US consulate abroad. US law contains what is called the doctrine of consular nonreviewability, which essentially shields any decision made by a consular officer abroad from judicial review in the United States. This means that there are no appeals, no layers of review, no ability to challenge a bad decision that happens at a US consulate abroad.  Fourth, travel bans and visa processing holds are still in effect for many countries.  For these and other reasons, adjustment of status is generally a much better choice for aspiring immigrants than consular processing.

What the Memo Is Trying to Do

The memo released on May 22, 2026, takes a 50-year-old case and presents it for what it doesn’t really say. In that case, the court found that the aspiring immigrant was a Filipino citizen who came to the United States with a full intention of circumventing the laws of the United States and trying to fool immigration officials and defraud the government of the United States. After entering the United States, he married a US citizen and applied for adjustment of status. In that case, the court simply held that when balancing the positive factors of the marriage to a U.S. citizen against the negative factors of intended fraud against the government, on balance, the aspiring immigrant did not merit a favorable exercise of discretion and the application was denied. USCIS is twisting this case to say that adjustment of status is an extraordinary form of relief and should only be granted in rare circumstances. The problem is that Congress never intended this to be the case, and there are many court cases and statutes passed by Congress that illustrate this. There are even numerous BIA cases that are binding on USCIS that say that in the absence of negative factors, an adjustment application should be granted. We are not going to go into all of the legal details of why this memo is wrong on the law in this blog, as it is not the purpose of it. Suffice it to say that this memo stands on very shaky legal ground, and there will be massive litigation fighting it.

What the memo does not do, and in fact, it states that it is not doing, is take discretion away from officers. The ultimate discretionary decision of whether somebody deserves the benefit of adjustment of status or not continues to rest with an adjudicating officer. All the memo is doing in practice is creating more work on the part of the applicants who now have to come forward with voluminous evidence to show why they deserve this benefit. In our firm, we have filed thousands of adjustment of status applications, and in our experience, we find that the vast majority of clients we represent would be able to show that they deserve an adjustment of status benefit. Also, this will likely have even less effect on employment-based adjustment applicants who are here in H-1B status. As a result, while this will create extra, unnecessary work, we do not believe that this will affect most of our clients. We believe we will still continue to be able to file adjustment of status applications and secure adjustment of status for our clients in the United States.

Will There Be Litigation?

There will most certainly be litigation pushing back on this memo. Aside from misstating the law as mentioned above, it also violates the Administrative Procedure Act by creating a “new rule” without what is called “notice and comment.” In order for the government to enact a new rule or regulation, the government must publish it for the public to comment on it before putting it in place. This was not done here. The memo also goes against many cases that hold the opposite of what USCIS is trying to do with this memo. While we believe litigation will be ultimately successful, it may take some time for mass litigation cases to work through the court system. Litigation in individualized cases is also an option that we at Vrapi Weeks are prepared to pursue if an application for adjustment of status were to be challenged or denied based on the surprise memo in violation of the Administrative Procedure Act.

What is Next?

This is a developing situation, and we are awaiting more details and guidance from the government of how this will play out in practice. We have many cases that are pending with upcoming interviews, and in the coming days and weeks, we will gain valuable experience in how to navigate these cases. We are also developing a legal brief and strategy for continuing to file new adjustment of status applications in the United States.  We will update this blog as we learn more. We have already taken steps to counterbalance the effect of this memo for our clients. What this memo has made abundantly clear, however, is that it is extremely important for aspiring immigrants to have experienced attorneys helping them in this process. The government is intent on steamrolling adjustment of status applicants; however, we believe that with good representation, all of these hurdles can be navigated successfully and lead to positive outcomes.

If you are considering applying for adjustment of status, schedule a consultation with one of our experienced attorneys so we can make a plan and guide you to a successful outcome.

How Can Vrapi Weeks Immigration Attorneys Help?

Vrapi Weeks immigration attorneys have a dedicated team of professionals with expertise in immigration matters filed for family members, immigration matters filed by employers, and immigration matters filed by individuals. We handle many types of immigration matters and can assist you with green card applications, work permits, waivers, employment-based visas, and family-based visas. If you have questions or would like for our local attorneys to evaluate your options, please schedule a consultation with our experienced team of immigration lawyers at Vrapi Weeks today.