Shrestha Law Firm, PLLC

05/31/2026

AN OVERVIEW OF THE NEW USCIS MEMO OF MAY 21, 2026, ON ADJUSTMENT OF STATUS

On May 21, U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum (PM-602-0199), released on May 22, 2026, concerning green card applications filed within the United States. While the Trump administration presents the memo as a “reminder” to USCIS employees about existing law, it has also touted it as closing a “loophole” by forcing noncitizens to leave the country to apply for green cards.

The startling news leaves many questions unanswered — including what will happen to people who have already filed green card applications, who will face the most scrutiny, and whether any groups of noncitizens will be categorically denied the chance to apply for green cards within the United States. Some of these scenarios could raise significant constitutional concerns.

Ultimately, many people will have to decide whether to remain in the United States with their families while risking their immigration status or leave to pursue lawful permanent resident status with the possibility of never being able to return. However, the full impact of the memo remains unclear.

What is “Adjustment of Status?”

The memo focuses on “adjustment of status,” which is a process that people living in the United States, who are eligible, go through to obtain lawful permanent residency, or a green card. This contrasts with pursuing lawful permanent residency abroad through “consular processing,” which requires applying for an “immigrant visa” at a U.S. embassy or consulate. If the person is issued this visa and admitted to the United States, they will receive a green card.

Every year, about one million people obtain lawful permanent residency. Becoming a lawful permanent resident allows a noncitizen who meets the requirements to ultimately apply for U.S. citizenship. Noncitizens can obtain green cards through certain family members, employment, or for humanitarian reasons.
In FY 2023, a total of 608,260 people obtained lawful permanent residency by adjusting their status while living in the United States, while 564,660 arrived from abroad. Most noncitizens who apply for lawful permanent residence based on employment apply within the United States.

Some noncitizens cannot use consular processing at all, including youth who have been abandoned, abused, or neglected and survivors of certain crimes who are applying for lawful permanent status (known as “Special Immigrant Juvenile Status” or “SIJ”). For many others, consular processing is theoretically an option, but in practice could destroy their cases. This is especially likely for people who are relatives (including spouses and parents) of U.S. citizens, but who have lived in the United States for some period of time without an immigration status. Under current law, once they leave the country, they trigger bars that prohibit them from getting legal immigration status for several years and prevent them from re-entering the country during that time. Additionally, the State Department has implemented an indefinite pause on consular visa processing of immigrant visas for nationals of 75 countries — making adjustment of status the only viable option for them.

What does USCIS’ new guidance on adjustment of status say?

The May 21 memo sets a significantly higher bar for approving adjustment of status applications filed from within the United States than has ever been used before, though it does not explicitly instruct USCIS to deny specific categories or types of adjustment of status applications.

Adjustment of status remains an accessible and legally available pathway to permanent residence. The new agency guidance does not prohibit foreign nationals from filing Form I-485, and it does not restrict USCIS officers from approving adjustment applications. What it does is raise the evidentiary bar and reframe the officer's lens: approval is now characterized as a favorable exercise of discretion, not a ministerial step in a predictable process.

The memo states that requests to adjust status within the United States should be considered “extraordinary discretionary relief” and an “act of administrative grace.” The guidance suggests that these applications may be denied if the applicant cannot otherwise show that they merit a favorable exercise of discretion.

USCIS asserts that this interpretation of the law is consistent with Congress’ intent — in other words, that Congress did not want people to adjust status within the United States except in extraordinary circumstances. However, this is not a widely accepted interpretation of the law. Congress created the adjustment of status process in 1952 and has amended that section of the law more than 20 times in the decades since. At no time has Congress written this “extraordinary discretionary relief” standard into the law that USCIS is now claiming Congress intended all along. Instead, Congress has provided for the adjustment of status process to be an established and parallel way to receive a green card.

Who could the new memo impact?

Because the memo stresses discretion, it is impossible to know from just the text whether USCIS intends to apply a higher standard for all adjustment applications or a narrow subset. However, the memo does spell out some things that adjudicators are supposed to consider “highly relevant” negative factors — ones that would make it very hard for someone to merit favorable discretion and get their adjustment of status application approved.

Among these factors are overstaying the validity period for their non-immigrant or parole status or failing to maintain a specific type of immigration status throughout their time in the United States. USCIS is suggesting that cases in which someone has overstayed their non-immigrant admission or parole period are now unlikely to be allowed to adjust status within the United States.

Reading between the lines, these applicants may be at higher risk:
• Immediate relatives of U.S. citizens because they do not have to be in a lawful status at the time they file their adjustment of status applications.
• Nonimmigrants in categories in which they cannot maintain their nonimmigrant status after applying for a green card, such as O-1 extraordinary ability or R-1 religious workers.

On the same day as it published this new guidance, USCIS partially walked back the memo’s immediate effects by saying applicants providing “economic benefit” or serving the “national interest” may remain on their current path. In a new statement, U.S. Citizenship and Immigration Services spokesman Zach Kahler suggests that green card applicants in the U.S. who will provide an "economic benefit" or serve the "national interest" will be allowed to complete their processing here, without having to leave. While it’s still unclear how these exceptions may be implemented, they may favor certain employment-based cases.

Who Might Not Be Affected?

Persons who adjust outside of INA § 245: Asylees
Persons who cannot consular process: SIJ
Persons who don’t need discretion to adjust: NACARA, Refugees, HRIFA, Legalization
Persons seeking adjustment of status in Immigration Court (It’s a USCIS Memo)

For those who are seeking adjustment of status under INA section 245(a) must pay extra attention to satisfy the heightened discretionary burden of proof under the Memo. As noted in the Memo, officers should balance positive and negative factors and make an individualized determination for each case.
While USCIS has always possessed statutory discretion under INA § 245, the agency's renewed emphasis on consular processing abroad as the default pathway — and its explicit characterization of domestic adjustment as a grant of "extraordinary relief" from that default — represent a significant departure from decades of agency practice. For most of the past thirty years, adjustment of status was treated, in effect, as a routine and predictable step for any eligible applicant with an available visa number. That presumption has now been reversed.

"Current and future adjustment applicants and their immigration counsel will need to make a clear and well-documented case that the applicant merits a positive exercise of discretion."

The Balancing Test: Negative and Positive Factors

The policy memo provides a non-exhaustive list of factors USCIS officers must weigh when deciding whether to exercise discretion favorably. No single factor is automatically disqualifying or automatically sufficient — the determination is holistic. The following grid summarizes the key considerations on each side of the ledger.

Factors Weighing Against Approval:

• Prior or current immigration law violations
• Violations of nonimmigrant status terms
• Unauthorized employment in the U.S.
• Strict nonimmigrant intent declared at entry, later contradicted
• Failure to depart at the end of the authorized stay
• Any criminal history
• False statements to U.S. government authorities
• National security concerns
• Insufficient country vetting/screening information
• Other conduct deemed negative by USCIS

Factors Weighing in Favor of Approval:

• Full compliance with all laws, including immigration laws
• Lengthy lawful residence with strong community ties
• Consistent employment history
• History of tax compliance
• U.S. education, training, and skills
• Close U.S. citizen or LPR family members
• Hardship upon departure or denial
• Community service and value
• Indicators of good moral character (GMC) (See recent USCIS Policy Memo on GMC in reference to N-400 Application)

It must be noted that “An alien’s threshold eligibility for the benefit sought is generally also a positive factor. Therefore, absent any negative factors, USCIS ordinarily exercises discretion positively.” See 1 USCIS-PM E.8, citing Matter of Arai, 13 I&N Dec. 494, 496 (BIA 1970), Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981); Matter of Cavazos 17 I&N Dec. 215, (BIA 1980)

What happens now to people hoping to adjust their status?

USCIS has issued conflicting messaging, which has created confusion and panic for applicants, employers, and practitioners. In its press release, the agency went further than the memo in suggesting that most temporary visa holders would need to leave the country and apply abroad for immigrant visas. The agency still has not clarified whether this guidance is supposed to apply to adjustment of status applications that have already been filed, or whether it will also apply to new applications. Nevertheless, there are recent reports from attorneys representing noncitizens with pending adjustment applications that their clients are being asked to demonstrate “extraordinary circumstances” per the memo.
Unfortunately, there may be significant uncertainty about the memo for the foreseeable future. The memo states that USCIS will “carefully” review the various options noncitizens have to adjust their status and that it “may” provide specific guidance as to whether those applications “may or may not warrant [an] act of grace and exception to the regular consular process.” Even if it does provide such guidance, it may not be made public. While the memo raises the bar for adjustment of status, just how much it has been raised — and who will still be allowed to stay in the U.S. to receive a green card — will not be clear until people begin to receive notices in their individual cases.

Will there be legal challenges to this policy memo?

The memo is likely to face legal challenges given that there is substantial disagreement with USCIS’ assertion that this policy is consistent with the law as enacted by Congress.

Contrary to Congressional Intent?

The Memo ignores or directly contradicts Congress-enacted statutes:
INA § 245(c) by it’s nature and intent contemplates immediate relatives applying for adjustment of status even if out of status.
INA § 245(k)
INA § 245(i)
INA AC-21

The agency has also effectively changed substantive policy without providing advance notice and an opportunity to comment through rulemaking. However, the outcome of such a court case — or whether USCIS would be allowed to implement the policy while a lawsuit is underway — is not at all clear.

This overall uncertainty is likely to discourage applicants, employers, and families from pursuing adjustment of status or taking risks with immigration filings. Unfortunately, this memo represents a continuing pattern by the current administration to significantly narrow practical pathways to permanent residence. Under the circumstances, it is extremely important to analyze, evaluate, and prepare an application for adjustment status (Form I-485) with additional documents as highlighted above prior to filing it with USCIS.

01/01/2026

A FEDERAL JUDGE BLOCKED THE TRUMP ADMINISTRATION’S MOVE TO TERMINATE TPS STATUS FOR THOUSANDS FROM NEPAL, HONDURAS, AND NICARAGUA

Wednesday, Dec. 31, 2025

A U.S. federal judge on Wednesday blocked the Trump administration from ending deportation protections for thousands of migrants from Honduras, Nepal, and Nicaragua after opponents argued the terminations were motivated by racial hostility.

The administration's decisions to end Temporary Protected Status for some 89,000 migrants failed to adequately consider conditions in the three countries that would prevent them from returning, San Francisco-based District Judge Trina Thompson wrote.
Thompson cited statements by Republican President Donald Trump and Homeland Security Secretary Kristi Noem portraying immigrants as criminals and a drain on U.S. ⁠society.

"These statements reflect a stereotyping of the immigrants protected under the TPS program as criminal invaders and perpetuate the discriminatory belief that certain immigrant populations will replace the white population," wrote Thompson, an appointee of Joe Biden.

TPS provides deportation relief and work permits to people already in the U.S. if their home countries experience a natural disaster, armed conflict, or other extraordinary event. Under the program, Noem has the authority to grant, extend, or terminate TPS designations for specific countries.

President Trump has sought to end most TPS enrollment as part of a broader effort to restrict both legal and illegal immigration. In TPS termination notices, the administration has said that allowing the migrants to remain in the U.S. is contrary to the ⁠country's interests.

The Supreme Court in October allowed the Trump administration to proceed with ending TPS for some 300,000 Venezuelans, but lower courts have continued to rule against other terminations. On Tuesday, a federal judge in Boston blocked a move to end protections for ⁠hundreds of migrants from South Sudan.
In her ruling, Thompson found that the National TPS Alliance, a group representing the TPS enrollees, had plausibly alleged ⁠the terminations were motivated by racial animus.

It is believed that the program covers approximately 72,000 Hondurans, initially 13,000, but now also includes 7,000 Nepalese and 4,000 Nicaraguans.

Although this decision has provided temporary relief to TPS holders from the named countries, the legal battle against the termination of TPS status is not yet over. DHS will certainly file an appeal to the higher court against the Court’s decision. In light of the higher Courts’ past decisions, including the Supreme Court’s favorable to DHS, it is advised to all TPS holders to remain cautious and consult immigration attorneys before making any new moves.

09/20/2025

BREAKING NEWS:

TRAVEL BAN ON H-1B NON-IMMIGRANTS TAKES EFFECT AT 12:01 AM ON SEPTEMBER 21

On September 19, 2025, President Trump issued a proclamation restricting the entry of anyone seeking to enter or reenter the U.S. in H-1B status without payment of a new $100,000 fee. The proclamation, titled Restriction on Entry of Certain Nonimmigrant Workers is effective date is 12:01 a.m. EDT Sunday, September 21, 2025, and is set to expire after one year.

While we wait for details regarding implementation, below are key points and considerations:

• The proclamation is effective 12:01 a.m. EDT September 21, 2025. It expires in 12 months but may be extended.
• The proclamation targets entry of H-1B workers into the U.S. who are currently outside the U.S. pursuant to INA 212(f).
• The restriction on entry applies only to H-1B workers who attempt to enter the U.S. after the effective date. It does not appear to impact H-1B workers already in the U.S.
o However, it could impact those who subsequently leave and try to re-enter the U.S. in H-1B status during the effective period of the proclamation.
• USCIS shall not adjudicate petitions unless they are accompanied by proof of payment of the $100,000 fee for H-1B workers who are currently outside of the U.S.
• Extensions of stay inside the U.S., including change of employer, change of status, and amended petitions —where the beneficiary remains in lawful H-1B status—are not expressly covered, so unless instructed otherwise, it appears they are exempt.
• Within 30 days of the next H-1B lottery (i.e., March 2026), the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall jointly submit a recommendation to the President as to whether renewing or extending the restriction on reentry is in the best interest of the U.S.
• Secretary of State shall issue guidance to prevent the misuse of B visas by beneficiaries of approved H-1B petitions who have start dates before 10/1/26 – presumably to prevent them from entering and filing a change of status and avoiding the fee.
• Secretary of Labor shall initiate rulemaking to revise the prevailing wage levels and to prioritize the admission of high-skilled and high-paid nonimmigrants.

Exceptions: There may be exceptions for an individual, a company, or an industry, if DHS determines that it is in the national interest of the U.S. and does not pose a threat to the security or welfare of the U.S. The language of the Proclamation does not address whether this new fee and travel restriction applies to cap-exempt H-1B workers outside of the U.S.

It is recommended that any H-1B workers currently abroad return to the U.S. as soon as possible before the effective date. Travel outside of the U.S. for visa processing/renewals will be impacted, so H-1B workers should refrain from all international travel until implementation is further clarified. For H-1B cap case beneficiaries with approved petitions and a valid H-1B visa, they should seek to enter the U.S. as soon as possible.

On September 20, 2025, USCIS publicly circulated this internal memorandum implementing the H-1B proclamation. Notably, it states that the proclamation applies only prospectively to petitions that have not yet been filed. In other words, any H-1B Petitions filed and approved prior to the effective date of September 21, 2025, are not subject to this new ban or fees.

09/19/2024

USCIS EXTENDS GREEN CARD VALIDITY EXTENSION TO 36 MONTHS FOR GREEN CARD RENEWALS

Effective Sept. 10, 2024, U.S. Citizenship and Immigration Services automatically extended the validity of Permanent Resident Cards (also known as Green Cards) to 36 months for lawful permanent residents who file Form I-90, Application to Replace Permanent Resident Card.

Extensions and Receipt Notices: Form I-90, Application to Replace Permanent Resident Card Lawful permanent residents who properly file Form I-90 to renew an expiring or expired Green Card may receive this extension. Form I-90 receipt notices had previously provided a 24-month extension of the validity of a Green Card.

USCIS has updated the language on Form I-90 receipt notices to extend the validity of a Green Card for 36 months from the expiration date on the face of the current Green Card for individuals with a newly filed Form I-90 renewal request. On Sept. 10, USCIS began printing amended receipt notices for individuals with a pending Form I-90 application.

These receipt notices can be presented with an expired Green Card as evidence of continued status. This extension is expected to help applicants who experience longer processing times because they will receive proof of lawful permanent resident status as they await their renewed Green Card.

Evidence of Green Card

If you no longer have your Green Card and you need evidence of your lawful permanent resident status while waiting to receive your replacement Green Card, you may request an appointment at a USCIS field office by contacting the USCIS Contact Center, and USCIS may issue you an Alien Documentation, Identification, and Telecommunications (ADIT) stamp after you file Form I-90.

07/19/2024

DHS Announces New Process to Promote the Unity and Stability of Families

On June 18, 2024, the Department of Homeland Security (DHS) announced a key step toward fulfilling President Biden’s commitment to promoting family unity in the immigration system. The Department of Homeland Security (DHS) announced actions to promote family unity in the immigration process, consistent with the Biden-Harris Administration’s commitment to keeping families together. This announcement utilizes existing authorities to promote family unity, but only Congress can fix our broken immigration system.

Under current law, noncitizens married to a U.S. citizen may apply for lawful permanent residence through their marriage to a U.S. citizen. However, to apply for lawful permanent residence, many noncitizens must first depart the United States and wait to be processed abroad, resulting in a prolonged, potentially indefinite, period of separation from their U.S. citizen family members and causing tremendous hardship to all concerned. Consequently, these families live in fear and face deep uncertainty about their future.
To address this challenge, DHS will establish a new process to consider, on a case-by-case basis, requests for certain noncitizen spouses of U.S. citizens who have lived in the United States for 10 years or more; do not pose a threat to public safety or national security; are otherwise eligible to apply for adjustment of status; and merit a favorable exercise of discretion. If eligible, these noncitizens will be able to apply for lawful permanent residence without having to leave the United States. DHS estimates that approximately 500,000 noncitizen spouses of U.S. citizens could be eligible to access this process; on average, these noncitizens have resided in the United States for 23 years. Approximately 50,000 children of these spouses also will be eligible for this process. Noncitizens who pose a threat to national security or public safety will not be eligible for this process, as aligned with our immigration enforcement priorities. If a noncitizen poses a threat to national security or public safety, DHS will detain, remove, or refer them to other federal agencies for further vetting, investigation, or prosecution as appropriate.

Today’s actions build on unprecedented steps by the Biden-Harris Administration to strengthen family unity including by implementing family reunification parole processes for nationals of Colombia, El Salvador, Guatemala, Honduras, and Ecuador; updating and modernizing the Cuban and Haitian family reunification parole processes; leading the Family Reunification Task Force to reunify nearly 800 children with their families who were separated; and establishing country-specific parole processes for certain nationals of Cuba, Haiti, Nicaragua, and Venezuela (CHNV) who have a U.S.-based supporter.

Eligibility and Process:

To be considered on a case-by-case basis for this process, an individual must:
• Be present in the United States without admission or parole;
• Have been continuously present in the United States for at least 10 years as of June 17, 2024; and
• Have a legally valid marriage to a U.S. citizen as of June 17, 2024.

In addition, individuals must have no disqualifying criminal history or otherwise constitute a threat to national security or public safety and should otherwise merit a favorable exercise of discretion.
Noncitizen children of potential requestors may also be considered for parole under this process if they are physically present in the United States without admission or parole and have a qualifying stepchild relationship to a U.S. citizen as of June 17, 2024.
In order to be considered for parole, an individual will need to file a form with USCIS along with supporting documentation to show they meet the requirements and pay a fee. Further information regarding eligibility and the application process, including a notice in the Federal Register, will be published in the near term. USCIS will reject any filings or individual requests received before the date when the application period begins later this summer.

Upon receipt of a properly filed parole in place request USCIS will determine on a case-by-case basis whether a grant of parole is warranted and whether the applicant merits a favorable exercise of discretion. All requests will take into consideration the potential requestor’s previous immigration history, criminal history, the results of background checks and national security and public safety vetting, and any other relevant information available to or requested by USCIS. USCIS has strong processes in place to identify and address potential fraud, which will be applied here to ensure the integrity of this program.

Other Action

In addition, DHS will join the Department of State in an effort to more efficiently facilitate certain employment-based nonimmigrant visas for eligible individuals, including Deferred Action for Childhood Arrivals (DACA) recipients and undocumented noncitizens, who have graduated from an accredited U.S. institution of higher education. By clarifying and enhancing the existing process, the Department of State’s policy will give U.S. employers increased confidence that they can hire the talent they need and that they will be able to quickly get to work. DHS will implement the Department of State’s policy update.

05/22/2024

A new report by Syracuse University’s Transactional Records Access Clearinghouse (TRAC) sheds light on the increasing number of Nepali nationals seeking asylum in the United States. The report reveals […]

04/20/2024

Immigrant workers with pending work permit renewals, and their employers, breathed a sigh of relief when USCIS extended a its rule.

04/03/2024

01/23/2024

ALERT!

USCIS Fee Hike Could Come Imminently

OIRA completed their review of this final rule on Friday, January 19, and WE expect that the final rule could be published imminently in the Federal Register.

We alert everyone who is going to file immigration benefit applications with USCIS that the USCIS Final Fee Rule could be published as a final rule within the next few weeks. The White House's Office of Information and Regulatory Affairs (OIRA) received the final rule containing the new fees on Monday, January 8, 2024.

Although OIRA typically has up to 90 days to complete its review, the Administration may prioritize finalizing this rule as it has been eight years since the last fee increase. USCIS has previously stated that a significant increase in immigration fees is necessary to fully recover operating costs and better manage its workload. Based on past fee rules, once it is published in the Federal Register, it will likely take effect at least 60 days later.

As background, on January 4, 2023, USCIS issued a proposed rule on adjusting the fee schedule, which included increasing application fees by a 40% overall weighted average increase.

When the proposed rule was released, the American Immigration Lawyer's Association and the American Immigration Council submitted a joint comment highlighting that employers would be required to pay more than:

70% more for H-1B petitions
129% more for O-1 petitions
201% more for L-1 petitions
a $600 surcharge for Forms 1-129 and I-140
Over 2,000% more for the H-1B electronic registration system fee
130% more for AOS, AP, and EAD applications when filed together.

As the fee hike is on the horizon, it will be prudent to file immigration applications before the hike.