The Law Office of Natalia Malyshkina

05/28/2026

Navigating the New USCIS Adjustment of Status Policy: What It Means for Your Green Card Journey

As an immigration attorney in San Francisco helping professionals, families, and exceptional talent build their lives in the United States, I’ve always emphasized strategic, proactive planning.

The recent USCIS Policy Memorandum PM-602-0199 (issued May 21, 2026) requires fresh attention. Titled “Adjustment of Status is a Matter of Discretion and Administrative Grace, and an Extraordinary Relief that Permits Applicants to Dispense with the Ordinary Consular Visa Process,” it reframes how officers should exercise discretion in I-485 adjudications.

While the memo doesn’t change the underlying law or regulations, it signals a heightened scrutiny of adjustment applications, urging officers to view Adjustment of Status (AOS) as an “extraordinary” exception rather than a standard pathway.

I see this new policy as overly vague and broad—relying heavily on older BIA cases that don’t fully align with decades of congressional expansions and established practice.

This vagueness risks inconsistent application and potential unenforceability through litigation. I fully expect there will be robust litigation on this matter, which will likely significantly limit or delay the enforcement of this policy.

Here’s my breakdown of how this affects the categories I regularly handle, distinguishing between truly discretionary areas and those with stronger statutory protections.

Employment-Based and Extraordinary Ability Cases (EB-1A, EB-1B, EB-2 NIW, etc.):

For high-skilled professionals, researchers, and entrepreneurs I represent, employment-based adjustments have long been a reliable route. The memo acknowledges dual-intent categories (like H-1B) but stresses that simply maintaining lawful status isn’t enough on its own for a favorable exercise of discretion.

• Impact: Officers will more closely examine why you didn’t pursue consular processing, any history of overstays, unauthorized employment, or perceived “preconceived intent.” Positive factors like specialized skills, economic contributions, employer letters, and national interest (especially for EB-1A/EB-2 NIW) can help offset this. For most if not all of my clients in this category we will show strong economic benefit to the USA which would positively affect the discretion.

• Discretion Level: Full discretion applies under INA 245(a). However, strong evidence of U.S. benefit should tip the scales. For clients in this category, I believe adjustment of status should continue to be approved in the vast majority of well-documented cases.

What we do: For the exceptional talent that we serve at my law office, we’ll build and proactively file a robust “positive equities” brief/memorandum explaining community ties, publications, tax records, explanation of the economic benefit to the USA, and impact statements along with forms I-485.

H-1B, O-1A, and Other Specialty Workers:

Many of my Bay Area clients transition from H-1B or O-1 to green cards while working at tech firms, startups, and research institutions.
The memo recognizes dual-intent categories like H-1B, but warns that maintaining valid status alone is not sufficient. If you stay in the U.S. after your original visa purpose ended, that’s viewed as a negative factor.

• Impact: Pending I-485s with any status maintenance issues may face RFEs asking “Why AOS instead of consular?” Expect more interview questions on ties abroad vs. U.S. integration. We should be filing I-485s while your H-1B or O-1A has lots of time on it to comfortably finish the I-485 process. We will proactively file a brief explaining why discretion is warranted in your specific case.

• Discretion Level: Highly discretionary, but long-term lawful presence and employer needs are strong positives. We will be filing briefs on discretion with each I-485 application. For most, if not all, of my clients in this category, will have strong arguments on positive economic impact on the USA. I believe Adjustment of Status should continue to be approved in the vast majority of these well-documented cases.

What we do: For professionals and the exceptional talent that we serve at my law office, we’ll build and proactively file a robust “positive equities” brief/memorandum explaining community ties, publications, tax records, explanation of the economic benefit to the USA, and impact statements along with forms I-485.

Family-Based Cases: Spouses and Immediate Relatives:

For U.S. citizen spouses and immediate relatives, Adjustment of Status has historically been more straightforward due to strong congressional intent for family unity.

• Impact: The memo applies, but positive factors like deep U.S. family ties and hardship from separation carry significant weight. Preconceived intent remains a potential issue if entry was on a B-2, for example.

• Discretion Level: Still discretionary, however we see that there may be a difference in the treatment of various types of relatives:
Young spouses - we will submit a strong package based on family ties and prospective economic benefit.

What we do: Include evidence of bona fide marriage, integration, and why leaving would disrupt family life. We will submit a strong brief on family ties and economic impact.

Family-Based for Elderly Parents and Preference Categories
Petitions for parents of U.S. citizens or adult children/siblings fall under preference categories with stricter maintenance-of-status rules.

• Impact: Higher risk if there’s any overstay or status violation. Consular processing may be pushed more aggressively.

• For elderly parents – here we will have to rely only on family ties in many cases. However, in Silicon Valley the parents of my talented clients are often highly accomplished professionals, professors, and researchers. We will work with each family to build a strong case.

• Discretion Level: Discretionary, with emphasis on “unusual or outstanding equities” to overcome negatives.

Recommendation: Prepare comprehensive packages documenting long-term ties and humanitarian factors.

Asylum and Refugee-Based Adjustments:

Asylee adjustments and certain humanitarian categories (e.g., under specific statutes) often have more protections.

• Impact: Many are non-discretionary or less affected if adjustment is the primary pathway. However, general discretion principles still apply where not statutorily mandated. USCIS may issue category-specific guidance later.

• Discretion Level: Non-discretionary on most approved asylums, discretionary for pending asylum cases. However, people in the pending asylum cases category (at least in Silicon Valley) will likely be able to show either strong community ties or positive economic impact.

What My Firm Is Doing Right Now

We are currently going through all of our pending AOS cases and proactively filing supplemental briefs demonstrating why a favorable exercise of discretion is warranted for our clients. Some clients already contacted us and their briefs are going out this week. Others we are contacting now.

These briefs highlight strong positive equities—economic contributions (patents, scientific articles, business activities), deep family ties, long-term integration, good moral character, religious affiliations, and national interest factors—to present a compelling case under the totality of the circumstances.

Broader Observations from the Immigration Bar

Immigration attorneys across the country are reacting with a mix of caution and resolve. Many view the memo as a “scare tactic” that overreaches by elevating routine AOS use into something suspect, despite Congress’s clear expansions of adjustment over decades.

Final Thoughts and Next Steps

This memo doesn’t eliminate Adjustment of Status—it raises the evidentiary bar for demonstrating why it’s appropriate in your case.
I remain optimistic: well-documented cases with strong equities, especially those benefiting the U.S. economy, families, or national interests, should continue to succeed.

If you have a pending I-485, are planning to file, or are in H-1B/O-1/EB-1/EB-2 status, let’s review your situation proactively.

Document positive factors now—family ties, community contributions, professional achievements, and economic impact.
Immigration law is complex and ever-changing, but strategic preparation has always been key. Reach out for a consultation, and let’s ensure your path to permanent residence is as smooth as possible.


Natalia Malyshkina, Esq. | Immigration Attorney | Helping talent and families thrive in America | San Francisco Bay Area

05/23/2026

Dear friends and colleagues,
Yesterday, on May 21, 2026, USCIS issued a new Policy Memorandum titled “Adjustment of Status is a Matter of Discretion and Administrative Grace, and an Extraordinary Relief that Permits Applicants to Dispense with the Ordinary Consular Visa Process.”
This memo strongly emphasizes that adjustment of status is no longer treated as a standard process — it is now framed as a discretionary benefit and “extraordinary relief.” For many individuals who are legally present in the United States, this change could make filing for a green card through Adjustment of Status (Form I-485) significantly more challenging.
As an immigration attorney with over 13 years of experience, I have successfully handled hundreds of cases involving discretionary decisions. I know how to build strong, well-documented arguments that highlight the positive factors in your case and address discretion effectively.
That said, many legal experts (including myself) believe this memorandum is likely to face successful court challenges in the near future, as it appears to go beyond a simple policy reminder.
If you or your loved ones were planning to file for Adjustment of Status, I strongly recommend not waiting. Now is the time to review your case carefully and develop a thoughtful strategy.
I’m here to help. Feel free to book a consultation through my website, and we can discuss your specific situation, evaluate your options, and create a clear path forward.
You don’t have to navigate this uncertainty alone.
Warm regards,
Natalia Malyshkina, Esq.
Immigration Attorney

05/22/2026

It was lovely spending time with fellow SFLS Alumni Association attorneys. Grateful for the friendships and professional connections.

05/06/2026

Today, we would like to express our heartfelt gratitude to Attorney Faye Lee Bresler of San Francisco for entrusting us with a truly meaningful gift — the Statue of Justice.

Thank you, Faye, for your continued support, inspiration, and friendship. Your legacy continues to guide and uplift all of us in the legal community.

11/02/2023

President Joe Biden issued a wide-ranging executive order that aims to safeguard against threats posed by artificial intelligence (AI). The Law Office of Natalia Malyshkina applauds this Executive Order as a required step in protecting society from the potentially dangerous effects of the AI industrial revolution. Earlier this year, attorney Natalia Malyshkina wrote to the White House urging legislation on AI and proposing various steps. Below is the letter we received from President Biden. We thank President Biden and the White House Administration for keeping an eye on emerging technologies and threats to humanity.

09/27/2023

USCIS updated the guidance in the Policy Manual to increase the maximum validity period to 5 years for initial and renewal Employment Authorization Documents (EADs) for certain noncitizens who are employment authorized incident to status or circumstance, including those admitted as refugees, paroled as refugees, and granted asylum, as well as recipients of withholding of removal.
USCIS also increased the maximum validity period to 5 years for initial and renewal EADs for certain noncitizens who must apply for employment authorization, including applicants for asylum or withholding of removal, adjustment of status under INA 245, and suspension of deportation or cancellation of removal.
The updated guidance also explains the categories of noncitizens who are automatically authorized to work (also known as being employment authorized incident to status or circumstance) and provides more information on who can present a Form I-94, Arrival/Departure Record, to an employer as an acceptable document showing employment authorization under List C of Form I-9, Employment Eligibility Verification. The Form I-94 must be accompanied by identity documentation for purposes of employment authorization. Finally, this guidance clarifies that certain Afghan and Ukrainian parolees are employment authorized incident to parole.
Increasing the maximum EAD validity period to 5 years is intended to significantly reduce the number of new Forms I-765, Application for Employment Authorization, we receive for renewal EADs over the next several years, contributing to our efforts to reduce associated processing times and backlogs. However, whether the noncitizen maintains employment authorization remains dependent on their underlying status, circumstances, and EAD filing category. For example, if an individual received an EAD under the (c)(9) category based on a pending adjustment of status application for the maximum validity period of 5 years, and the adjustment application is then denied, their ancillary employment authorization may be terminated before the expiration date listed on their EAD.
For more information, please see the Policy Alert.

05/01/2023

From USCIS:

FY 2024 H-1B Initial Registration Period Updates

As previously announced, on March 27, 2023, U.S. Citizenship and Immigration Services (USCIS) received enough electronic registrations during the initial registration period to reach the fiscal year 2024 H-1B numerical allocations (H-1B cap), including the advanced degree exemption also known as the master’s cap.
The H-1B electronic registration process, implemented in 2020 beginning with the FY 2021 H-1B cap, has dramatically streamlined processing by reducing paperwork and data exchange, and provides an overall cost savings to petitioning employers and USCIS.

Historically, employers filed their full, and often voluminous, H-1B cap-subject petitions with USCIS during a five-day filing period, after which USCIS would select eligible petitions through a random selection process. This process resulted in unnecessary paperwork and incurred mailing costs for both petitioners and the agency. By streamlining the H-1B cap selection process with an electronic registration system, USCIS created cost savings and efficiencies for petitioners and the agency.

FY 2024 H-1B Registration Overview
During the registration period for the FY 2024 H-1B cap, USCIS saw a significant increase in the number of registrations submitted compared to prior years. Generally, we saw an increase in the number of registrations submitted, the number of registrations submitted on behalf of beneficiaries with multiple registrations, and the number of registrations submitted on behalf of unique beneficiaries with only one registration. USCIS saw upward trends in the FY 2022 and FY 2023 H-1B registration periods as well.
This chart shows registration and selection numbers for fiscal years 2021-2024 (as of April 24, 2023).

Cap Fiscal Year Total Registrations Eligible Registrations* Eligible Registrations for Beneficiaries with No Other Eligible Registrations Eligible Registrations for Beneficiaries with Multiple Eligible Registrations Selections**
2021 274,237 269,424 241,299 28,125 124,415
2022 308,613 301,447 211,304 90,143 131,924
2023 483,927 474,421 309,241 165,180 127,600
2024 780,884 758,994 350,103 408,891 110,791

*The count of eligible registrations excludes duplicate registrations, those deleted by the prospective employer prior to the close of the registration period, and those with failed payments.

**The number of selections was smaller in FY24 than in prior years primarily due to (a) establishing a higher anticipated petition filing rate by selected registrants based on prior years; and (b) higher projected Department of State approvals of H-1B1 visas, which count against the H-1B cap.

Measures to Combat Fraud in the Registration Process:

The large number of eligible registrations for beneficiaries with multiple eligible registrations - much larger than in previous years – has raised serious concerns that some may have tried to gain an unfair advantage by working together to submit multiple registrations on behalf of the same beneficiary. This may have unfairly increased their chances of selection. We remain committed to deterring and preventing abuse of the registration process, and to ensuring only those who follow the law are eligible to file an H-1B cap petition.

We remind the public that at the time each registration is submitted, each prospective petitioner is required to sign an attestation, under penalty of perjury, that:

(a) All of the information contained in the registration submission is complete, true, and correct;
(b) the registration(s) reflect a legitimate job offer; and
(c) The registrant, or the organization on whose behalf the registration(s) is being submitted, has not worked with, or agreed to work with, another registrant, petitioner, agent, or other individual or entity to submit a registration to unfairly increase chances of selection for the beneficiary or beneficiaries in this submission.

If USCIS finds that this attestation was not true and correct, USCIS will find the registration to not be properly submitted and the prospective petitioner would not be eligible to file a petition based on that registration. USCIS may deny a petition, or revoke a petition approval, based on a registration that contained a false attestation and was therefore not properly submitted.

12/20/2022

USCIS issued an amazing summary of options for workers on employment-based visas who were fired or laid off:


U.S. Citizenship and Immigration Services (USCIS) is providing information for nonimmigrant workers whose employment has terminated, either voluntarily or involuntarily. These workers may have several options for remaining in the United States in a period of authorized stay based on existing rules and regulations.

Below is a compilation of options that may be available to nonimmigrant workers seeking to remain in the United States in a period of authorized stay following termination. Please note that not all options below provide employment authorization.

60-Day Grace Period

Regulations permit a discretionary grace period that allows workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications (and their dependents) to be considered as having maintained status following the cessation of employment for up to 60 consecutive calendar days or until the end of the authorized validity period, whichever is shorter (See 8 CFR 214.1(l)(2)).

During this period, workers may be able to maintain their nonimmigrant status if a new employer timely files a petition on their behalf with an extension of stay request (e.g., an H-1B change of employer petition for a worker in H-1B status).

Alternatively, workers may be able to remain in the United States in a period of authorized stay if they timely file an application to change to a new nonimmigrant status (such as B-2 visitor nonimmigrant status) or an application for adjustment of status, if eligible (see below for a detailed overview of options).
Workers who are unable to timely file a change of status application, or find a new employer who timely files a change of employer petition for the worker, may be required to depart the United States at the end of this grace period.

Portability to a New Employer

Portability rules permit workers currently in H-1B status to begin working for a new employer as soon as the employer properly files a new H-1B petition with USCIS, without waiting for the petition to be approved. More information about H-1B portability can be found on our H-1B Specialty Occupations page.

Also, a worker with an adjustment of status application (Form I-485) that has been pending for at least 180 days with an underlying valid immigrant visa petition (Form I-140) has the ability to transfer the underlying immigrant visa petition to a new offer of employment in the same or similar occupational classification with the same or a new employer. This is commonly referred to as “porting.” More information about porting can be found in the USCIS Policy Manual.

Change of Status

Workers may use the up to 60-day discretionary grace period to apply to change their nonimmigrant status, which may include changing status to become the dependent of a spouse (e.g., H-4, L-2). Some individuals in a dependent nonimmigrant status may be eligible for employment authorization incident to status, including spouses of E-1, E-2, E-3, or L-1 nonimmigrants (See USCIS Policy Manual). In addition, some spouses of H-1B workers may be eligible for work employment authorization if certain requirements are met.

Other possible nonimmigrant options include student status (F-1) or visitor status (B-1 or B-2). Note that, by statute, B-1 and B-2 nonimmigrant visitors are specifically precluded from “performing skilled or unskilled labor” in the United States. Certain F-1 students, by regulation, may engage in limited employment. For more information, please see our Change My Nonimmigrant Status page.
Potential pathways for noncitizen STEM professionals can be found on our Options for Noncitizen STEM Professionals to Work in the United States page.

Note: The timely filing of a non-frivolous application to change status will toll, or stop, the accrual of unlawful presence until the application is adjudicated. For example, if an individual files a non-frivolous application to change status before the end of the applicant’s 60-day grace period, they will not accrue unlawful presence while the application remains pending even after the 60-day grace period has elapsed. If the application is ultimately approved, then the individual’s status is changed and is considered to have been in a period of authorized presence the entire time the application was pending. If the application is denied, then the individual starts to accrue unlawful presence the day after the denial decision. Please see our Unlawful Presence and Inadmissibility page for more information.

Change of Status and Employer

Workers may use the up to 60-day discretionary grace period to seek a new employer-sponsored nonimmigrant status in the same or different status. For example, depending on the specific facts presented, an L-1 worker may be eligible for new employment under the TN, E-3, or H-1B1 classifications. The timely filing of a non-frivolous change of status application will prevent the accrual of unlawful presence until the application is adjudicated (see above). Such a filing alone will not, however, confer employment authorization in the new position during the pendency of the application, and will not extend employment authorization if the original classification is no longer valid. Some petitions may be eligible for premium processing for an additional fee.

Adjustment of Status

Some workers may be eligible to file a self-petitioned immigrant visa petition concurrently with an adjustment of status application. Examples of immigrant classifications that are eligible for self-petitioning include EB-1 Extraordinary Ability, EB-2 National Interest Waiver, or EB-5 Immigrant Investors. Workers with a pending adjustment application are generally eligible to remain in the United States and obtain an Employment Authorization Document (EAD).

Period of Authorized Stay - Compelling Circumstances Employment Authorization Document Workers who are the beneficiary of an approved employment-based immigrant visa petition (Form I-140) may be eligible for a compelling circumstances EAD for up to one year if they:

• do not have an immigrant visa available to them in the Department of State’s Visa Bulletin, and
• face compelling circumstances.

Note: A compelling circumstances EAD is a discretionary stopgap measure intended to assist certain individuals on the path to lawful permanent residence by preventing the need to abruptly leave the United States. Workers who begin working on a compelling circumstances EAD will no longer be maintaining nonimmigrant status but generally will be considered to be in a period of authorized stay and will not accrue unlawful presence in the United States while the EAD is valid. More information about eligibility requirements and the application process can be found on our Employment Authorization in Compelling Circumstances page.

Expedite Criteria

Some circumstances may warrant expedited adjudication, including applications to change status to a dependent status that includes eligibility for employment authorization. For example, an application to change status from H-1B to L-2 may be eligible for expedited adjudication to prevent severe financial loss. See the How to Make an Expedite Request page for additional information.
Departure from the United States Workers may choose to depart the United States. For H-1B and O workers who chose to depart the United States after involuntary cessation of employment, the reasonable costs of transportation to the worker’s last place of foreign residence must be borne by the H-1B employer or by the O employer and O petitioner, as applicable (See 8 CFR 214.2(h)(4)(iii)(E) and 8 CFR 214.2(o)(16)).

Once abroad, H-1B holders may seek U.S. employment and readmission to the United States for any remaining period of their H-1B status. Those seeking another classification for which they may be eligible can complete the application or petition process abroad and seek readmission to the United States.

The above information is now available on our new Options for Nonimmigrant Workers Following Termination of Employment page.

This page contains information for nonimmigrant workers whose employment has terminated, either voluntarily or involuntarily. These workers may have several options for remaining in the United Stat

12/07/2022

Great news: now U4U recipients are eligible to work in the USA upon arrival. 82,000 Ukrainians and their family members were already paroled into the USA (as of October 1, 2022.)

https://www.uscis.gov/sites/default/files/document/reports/OPA_ProgressReport.pdf

04/26/2022

Uniting for Ukraine: legal way to bring relatives to the USA

Today, the Biden administration announced the legal way to bring relatives to the USA.

If you currently have legal status in the USA, you might be eligible to file petition I-134 to bring your family members here.

• It appears that if you are waiting for the asylum interview, you might be eligible to file this form.
• If you are on a nonimmigrant visa such as E-2, O-1, H-1B or other, you should be able to file this form.

You can file this form online here: https://www.uscis.gov/humanitarian/uniting-for-ukraine
You will also see full instructions on that USCIS page.

Here is more information:
https://www.dhs.gov/ukraine

Form I-134 does not have a fee, but there may be minor fees involved after form I-134 is approved, and your relatives need to do biometrics or obtain visas/parole at the USA embassy. Usually, those fees are about $85-$350.

I recommend filling out this form as soon as possible since it will be a popular benefit and USCIS works slowly due to the pandemic.

The Law Office of Natalia Malyshkina
100 Pine Street, Suite 1250
San Francisco, CA 94111
Phone: 415-240-0083
www.immigration-business-law.com
Skype: LawMalyshkina

100 Pine St., Ste 1250, San Francisco, CA ☎ (415) 240-0083