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What does the memo say?
The memo states that individuals seeking a green card are expected to apply from abroad through consular processing. It frames applying for the green card inside the U.S. (AOS) as an “extraordinary” measure that should only be granted in limited circumstances. AOS applicants bear the burden of proving why USCIS should exercise discretion to approve the application.
Does the memo apply to all adjustment of status cases?
The memo applies to all discretionary AOS cases which includes all employment and family-based green card AOS/I-485 applications.
Does this change who can apply?
No. The memo does not change eligibility rules or the law. However, it could make approvals more difficult in practice.
How will cases be evaluated now?
USCIS will apply a more rigorous, case-by-case discretionary analysis after confirming the baseline criteria have been met.
Officers will weigh the totality of the circumstances, including both positive and negative factors.
What factors will be considered?
Negative factors
- Status violations (e.g., overstays, unauthorized work)
- Fraud or false statements before any government agency
- Criminal history
- Conduct inconsistent with visa purpose
- Remaining in the U.S. instead of using consular processing on single intent visa
- Family ties in US
- Employment/economic contributions to US, specialized skills
- Overall immigration compliance
- Good moral character (no criminal history, community involvement)
Do we expect litigation on this issue?
We anticipate that USCIS’s new policy will be litigated given how drastically it diverges from the existing legal framework and adjudication norms. We will be closely monitoring any litigation as the scope and application of this policy are tested.
What should potential I-485 applicants do?
- Maintain strict compliance with immigration status
- Avoid unauthorized employment and gaps in status
- Document strong positive equities
- Carefully plan I-485 filing timing and strategy
- Continue to maintain nonimmigrant status until I-485 is approved
What should I do if my I-485 is currently in process?
At this time no action is required if your I-485 is already filed and pending.
Bottom line
Adjustment of status is still available—but it is no longer treated as routine.
Applicants must now clearly demonstrate that they deserve a favorable exercise of discretion—not just that they are eligible.
If you have any questions about how this policy might impact your case, please contact your Musillo Unkenholt attorney. Our firm will remain closely engaged on this issue and will provide timely updates as the legal landscape continues to evolve.
