05/25/2026
Q & A on responding to USCIS a new memo restricting adjustment of status only in extraordinary circumstances.
Q:
Is the new USCIS memo a new law passed by Congress?
A:
No. This is not a new law passed by Congress. INA 245, which allows Adjustment of Status inside the United States, still exists and remains valid law.
What changed is USCIS’s interpretation and implementation of the law. USCIS is changing how officers exercise discretion when deciding Adjustment of Status applications.
Historically, if someone met the statutory requirements for Adjustment of Status, most applications were approved unless there were major problems. But now USCIS is signaling that Adjustment of Status should be treated more as an “extraordinary” benefit rather than a routine process.
The law has not disappeared — but the level of scrutiny is clearly increasing.
________________________________________
Q:
Does this memo stop eligible people from filing Adjustment of Status applications?
A:
No. Absolutely not.
People who are statutorily eligible can still file Form I-485.
The real issue is how USCIS will exercise discretion during the interview and adjudication process.
In fact, USCIS officers are already asking new questions connected to this memo in marriage-based Adjustment interviews.
The questions include:
1. Why did you apply for Adjustment of Status instead of Consular Processing?
2. Are there any factors preventing you from pursuing Consular Processing?
3. Do you still have family living in your home country?
4. Why did you not return to your country after your authorized stay expired?
These questions show USCIS is now closely examining why someone remained in the United States instead of pursuing immigrant visa processing abroad.
________________________________________
Q:
What does this memo mean practically?
A:
Adjustment interviews will likely become much more difficult and discretionary.
Adjustment of Status has always been discretionary relief. USCIS balances positive and negative equities.
Previously, if someone met the statutory requirements, approval was often expected. But now applicants may need to actively prove why they deserve to adjust status inside the United States rather than process abroad.
________________________________________
Q:
Will this affect all visa holders equally?
A:
No.
H-1B and L-1 visa holders may be less affected because those are “dual intent” visas. Immigration law already recognizes that those visa holders may have both temporary intent and immigrant intent at the same time.
But for many other temporary visa categories — such as:
• F-1 students,
• J-1 exchange visitors,
• B-1/B-2 visitors,
• TN visa holders,
• E-2 investors,
• R-1 religious workers,
• and parolees,
USCIS may now more closely examine why they remained in the United States and later pursued permanent residency.
________________________________________
Q:
What advice would you give to those nonimmigrant visa holders?
A:
If possible, maintain your lawful nonimmigrant status while your I-485 is pending.
Why? Because if your Adjustment application is denied while you still have valid status, you may still leave the United States and pursue Consular Processing abroad.
But if you are already out of status, the risks become much greater.
________________________________________
Q:
Who may be the most vulnerable under this new policy?
A:
Probably ESTA and Visa Waiver entrants, as well as some parolees.
Normally, most people must be in lawful status to file Adjustment of Status.
However, there is an important exception for immediate relatives of U.S. citizens:
• spouses of U.S. citizens,
• parents of adult U.S. citizen children,
• and unmarried children under 21 of U.S. citizens.
They may still adjust status even if they overstayed or worked without authorization.
That protection still exists under INA 245.
However, USCIS may now view overstays and unauthorized employment as stronger negative discretionary factors because ESTA and tourist entries were intended only for short temporary visits.
________________________________________
Q:
Should ESTA entrants avoid Adjustment of Status?
A:
Not necessarily.
If someone is still within lawful status — such as within the 90-day ESTA period — they should seriously consider Consular Processing before overstaying.
But if someone already overstayed more than six months, leaving the United States may trigger unlawful presence bars and require an I-601 or I-601A waiver, which can take years.
In those situations, Adjustment of Status inside the United States may still be strategically better — but the applicant needs strong positive equities and careful interview preparation.
________________________________________
Q:
What about people who entered lawfully with F-1, J-1, E-2, R-1, or similar visas, later fell out of status, and then genuinely married a U.S. citizen?
A:
This is a very important group.
If you originally entered lawfully with a valid nonimmigrant visa such as:
• F-1,
• J-1,
• E-2,
• R-1,
• or similar status,
and later genuinely married a U.S. citizen, you should not automatically panic because of this memo.
In many cases, pursuing Adjustment of Status may still be strategically the best option.
These individuals often entered lawfully, maintained status for some time, and built legitimate lives in the United States through education, business, ministry, employment, or family relationships.
Those are strong positive equities.
Yes, USCIS interviews will likely become more difficult and more discretionary.
However, even if USCIS denies the case and places the applicant into removal proceedings, there may still be a strong possibility of obtaining Adjustment of Status before an Immigration Judge.
Immigration Judges apply the Immigration and Nationality Act itself. They do not necessarily have to follow USCIS internal policy memoranda the same way USCIS officers do.
That distinction is very important.
________________________________________
Q:
What happens if USCIS denies the Adjustment application?
A:
In many cases, USCIS may place the person into regular removal proceedings under INA Section 240.
The good news is that many applicants can still renew their Adjustment application before an Immigration Judge.
Our office has handled many Adjustment cases in Immigration Court with strong success.
Immigration Judges also balance positive and negative equities:
• family ties,
• long residence,
• good moral character,
• U.S. citizen children,
• hardship,
• employment history,
• community involvement,
and many other factors.
________________________________________
Q:
What is the worst-case scenario?
A:
The worst-case scenario is that a Visa Waiver entrant could be placed into expedited removal procedures under INA 217 instead of regular removal proceedings.
That could involve detention, voluntary departure, and Consular Processing abroad with an unlawful presence waiver.
That is why strategy is now more important than ever.
________________________________________
Q:
Final advice?
A:
Do not panic — but do not underestimate this policy change either.
The law allowing Adjustment of Status still exists.
However, USCIS scrutiny has clearly increased.
Applicants now need:
• stronger preparation,
• stronger evidence,
• stronger positive equities,
• and much more careful interview preparation.
This is no longer simply about filing forms.
It is about presenting a persuasive case showing why Adjustment of Status should be granted in the exercise of discretion.
And even if USCIS denies Adjustment of Status, Immigration Court may still provide another opportunity for relief.
Careful legal strategy is now more important than ever.
