Understanding “Adjustment of Status” and the U.S. Citizenship & Immigration Services Memo of 5/21/2026
Defining status, change of status, and adjustment of status
Generally, a foreign national first obtains “status” upon entering the United States with a visa. A nonimmigrant is a person admitted for a specific temporary period of time. A person with nonimmigrant status is allowed to remain in the United States temporarily for a specific purpose, such as tourism, studies, or employment. An immigrant is someone living in the United States under legally recognized and lawfully recorded permanent residence. Immigrant status is held by lawful permanent residents (LPRs or green card holders). LPRs may live and work anywhere in the United States indefinitely and are eligible to apply for U.S. citizenship after residing in the United States for a specified time.
Once in the United States, a nonimmigrant may apply for a “change of status” to a different nonimmigrant status on either Form I-129 or Form I-539 depending on the circumstances. “Adjustment of status,” is when a nonimmigrant inside the United States applies for immigrant status using Form I-485.
Adjustment of status has a long history in the United States, tracing back to 1952. Since then, an increasing number of foreign nationals have adjusted their status, with USCIS approving hundreds of thousands of applications in 2025. The alternative for a nonimmigrant in the United States who wishes to become an LPR is to leave the United States, obtain an immigrant visa from a U.S. consulate abroad, and reenter the United States using that immigrant visa, known as “consular processing.”
My first permanent position with the legacy Immigration and Naturalization Service (INS) (now USCIS) was at a field office in the 1990s interviewing applicants for naturalization and adjustment of status. Then, as now, certain immigration violations, such as entering the United States without inspection or working without permission, are bars to adjusting status by law, although at the time there were some exceptions if someone paid a $1,000 fee. We did not, however, question applicants as to why they chose not to leave the United States to consular process. Current eligibility requirements for and bars to adjustment may be found in Volume 7, Part B of the USCIS Policy Manual.
What was the recent change?
While there was no change in the law, on May 21, 2026, USCIS issued a policy memo that seemed to limit a nonimmigrant’s ability to adjust status. The following day, USCIS issued a press release titled “U.S. Citizenship and Immigration Services Will Grant ‘Adjustment of Status’ Only in Extraordinary Circumstances.” It announces that someone who is in the United States temporarily and wants a Green Card “must return to their home country to apply, except in extraordinary circumstances.”
When I was in the USCIS Office of Policy and Strategy from 2017 - 2025, the agency was transitioning from publishing policy memos and updates to the Adjudicators’ Field Manual (AFM) to having one user-friendly location for all policy, the USCIS Policy Manual. To implement that strategy, we reorganized and moved over AFM content to the Policy Manual and issued updates to the Policy Manual instead of new memos. New policy would be announced through Policy Alerts that carefully highlighted the important elements of the new policy.
In the case of the recent Policy Memo, while the press release suggests a major change, the memo itself states only that it is intended to “remind” USCIS officers and the public that adjustment of status is a matter of discretion, an analysis where officers weigh positive and negative factors in addition to eligibility. In the guidance portion of the memo, USCIS states that where overseas processing at a U.S. consulate is available to an adjustment applicant, officers should consider that adjustment of status is an extraordinary discretionary relief. The memo further identifies relevant factors to consider, including a person’s failure to comply with the conditions of his or her nonimmigrant status and depart as expected.
Dual Intent and its Relevance to the Memo
While student visas are not considered to allow dual intent, other nonimmigrant statuses are, such H-1B and O-1, meaning that these nonimmigrants are permitted to have an intent to eventually immigrate when approved for their nonimmigrant status. While the memo recognizes that it is not inconsistent for nonimmigrants with “dual intent” status to apply for adjustment of status, it also states, in a footnote, that maintaining dual intent status by itself is not sufficient for a favorable determination.
In my experience drafting policy, we would include operational offices in the development of policy and ensure any necessary training occurred before issuing the policy. This memo, however, concludes that USCIS intends to review the various pathways to adjustment of status and “may” provide future guidance. After issuing this memo, USCIS has attempted to clarify in statements to news agencies that individuals who will provide an economic benefit or are otherwise in the national interest will likely be able to continue to adjust status in the United States and that the policy will not prevent someone from adjusting status if they “legitimately and properly qualify.” Having applied guidance both at a field office and later as an appeals officer at the Administrative Appeals Office, I can imagine that these clarifications to the media may only serve to confuse the field officers who must apply this guidance as drafted.
What is the impact for students and scholars?
There is no immediate impact for current students or scholars who hold F or J status relating to their ability to maintain student status, apply for OPT or Academic Training, or apply to change status while in the United States to another nonimmigrant status, such as H-1B or O-1.
The new policy may impact a student who, based on a family relationship or prospective employment, seeks to adjust status to that of an LPR. In response to inquiries, USCIS has said eligible nonimmigrants can still adjust status and private attorneys have reported that USCIS has not stopped approving adjustment applications. As clarifications of the policy reference economic benefit, students who seek to adjust status based on prospective employment or an investment will generally be able to adjust their status. All adjustment applicants should be prepared for potential questions from USCIS, such as whether, when they entered the United States, they misrepresented their intent to depart the United States after completing their studies and why they are choosing not to use consular processing abroad. They may also be asked to show that they are involved in their community.
We will continue to monitor how USCIS implements the new guidance. While the May 21, 2026 memo is concerning, we hope that it is taken only as a reminder to government officials that adjustment of status involves a discretionary weighing of positive and negative factors, which has always been true, and that adjustment applications may continue to be processed and approved. If you have legal questions or concerns about your specific situation, you may contact an attorney on our attorney referral page.
