A realistic guide to the new adjustment of status policy - what changed, what didn't, and how to protect your path to a green card.
U.S. Citizenship and Immigration Services (USCIS) has issued a Policy Memorandum regarding the process of adjustment of status to lawful permanent residence, which allows foreign nationals in the U.S. to apply for a green card without leaving the country.
Adjustment of status (AOS) is the legal process that allows certain foreign nationals who are already physically present inside the United States to apply for a green card without leaving the country to complete the process at a U.S. consulate abroad. This pathway is used by hundreds of thousands of people each year, including:
Spouses, children, and parents of U.S. citizens filing on the basis of marriage or family ties
Employees sponsored by a U.S. employer in the EB-1, EB-2, or EB-3 preference categories
H-1B, L-1, and O-1 nonimmigrant workers whose employers have filed immigrant petitions on their behalf
F-1 students who have secured employer sponsorship and an approved immigrant petition
Individuals with approved I-130 or I-140 petitions whose priority date is current
The alternative pathway to a green card is consular processing, which requires leaving the U.S., attending an interview at a U.S. consulate in your home country, and being issued an immigrant visa there before returning as a permanent resident. For many people, particularly those with a U.S. citizen spouse and deep ties to this country, leaving is not a simple matter. It can mean separation from family, disruption of employment, and in some cases, the risk of being barred from returning.
To be clear, this new policy memorandum does not change existing laws regarding the adjustment of status process and USCIS continues to accept and approve adjustment of status applications. Under INA Section 245(a), adjustment of status has always been discretionary - meaning USCIS officers have always had the legal authority to deny an application even where the applicant meets the technical requirements. In practice, for many years, discretionary denials were relatively rare in straightforward cases. This memo simply signals that discretionary scrutiny may be applied more broadly and more rigorously going forward.
The memo directs officers to weigh these factors against approval: violations of nonimmigrant status (overstays, unauthorized work); prior immigration fraud or misrepresentation; criminal history or law enforcement interactions; entry inconsistent with the purpose of the visa (e.g., entering as a tourist with immediate intent to adjust); and remaining in the U.S. beyond the authorized period to avoid consular processing.
On the other side, factors that support approval include: full compliance with immigration laws and visa conditions; strong family ties, especially to U.S. citizens or lawful permanent residents; long-term lawful presence and community ties; a positive employment history and contributions; and good moral character with no criminal history.
The memo also explicitly acknowledges important exceptions, including "dual-intent" nonimmigrant categories like H-1B and L-1, where it has long been legally permissible to hold a temporary status while simultaneously pursuing a green card. It further confirms that when an officer denies an application on discretionary grounds, a written explanation must be provided, creating an avenue for appeal and review.
What This Means for Marriage-Based Applicants
If you are a foreign national married to a U.S. citizen or lawful permanent resident and are currently living in the United States, its important to understand that marriage to a U.S. citizen has long been considered among the strongest possible bases for a favorable exercise of discretion under U.S. immigration laws. Keeping spouses and families together has been a cornerstone of U.S. immigration law and policy for generations. The new memo does not eliminate this consideration.
If you married a U.S. citizen in good faith, entered the U.S. lawfully, have maintained your immigration status, and have no criminal history, the policy memo's new emphasis on negative factors does not significantly change your picture. Your application should be built to demonstrate exactly these positive equities.
Where the memo's impact may impact marriage-based applicants:
Preconceived intent: Officers may take a harder look at whether a foreign national entered on a tourist or student visa with immediate plans to marry and adjust, rather than genuinely intending to depart
Status violations: Any periods of unauthorized stay or employment may weigh more heavily in the discretionary analysis
Prior removals or unlawful entries: Applicants with a history of removal orders or who entered without inspection may face heightened scrutiny
Criminal history: Law enforcement interactions may be examined more carefully
If any of these apply to your situation, it does not necessarily mean your application will be denied, but it does mean you need experienced legal guidance to present your case in the strongest possible light.
What This Means for Employment-Based Applicants
For foreign nationals on H-1B, L-1, O-1, and other work-authorized nonimmigrant status who are pursuing an employer-sponsored green card, the policy memo specifically notes that certain visa categories permit individuals to simultaneously maintain a temporary status and pursue permanent residence. H-1B and L-1 holders have always been permitted, under statute, to have immigrant intent and the memo acknowledges this distinction.
If you are on H-1B or L-1 status with an approved I-140 and a current priority date, the dual-intent nature of your visa status is a recognized and legitimate basis for adjustment of status. This is one of the clearest cases where a well-documented application continues to have a strong foundation. That said, the memo does signal that officers will scrutinize employment-based cases with an eye toward whether the applicant's nonimmigrant stay has been consistent with the terms of their visa and whether there are any negative factors. F-1 students planning to transition through employer sponsorship should work closely with counsel to ensure their timeline and status history are clean.
Why You Should Not Panic
In this climate of rapid policy changes and alarming headlines, it is important to understand:
Adjustment of status under INA §245 remains a lawful, congressionally authorized pathway to permanent residence
USCIS continues to accept I-485 applications
Pending I-485 cases continue to be adjudicated, though some delays and additional evidence requests are possible
Employment Authorization Documents and Advance Parole travel documents can still be requested and obtained while an I-485 is pending
Dual-intent visa categories (H-1B, L-1) are explicitly recognized as a legitimate basis for adjustment
Legal challenges to this memo are expected and could limit or pause its implementation
Working With Experienced Legal Counsel Is Critical
This policy memo makes it clear that there are no straightforward adjustment of status applications. Now more than ever, a strategically prepared, thoroughly documented, and comprehensively prepared application that supports a favorable exercise of discretion is critical to the success of your adjustment of status case.
Working with a qualified immigration attorney provides:
Comprehensive case assessment: A review your entire immigration history - entries, visa statuses, any prior violations, employment history - to identify and address any potential negative factors before they become problems
Discretion strategy: Builds a record of positive factors - documenting family ties, community contributions, employment history, moral character, and hardship - that presents the strongest possible case for a favorable discretionary decision
Evidence preparation: Carefully curates a evidentiary record based on what USCIS officers are looking for
Interview preparation: Prepare you for an interview so you understand what to expect, anticipate discretionary concerns, and present your case clearly and confidently
Responding to RFEs and denials: If USCIS issues a Request for Evidence or proposes a denial, your attorney can respond effectively
Monitoring legal developments: The landscape is shifting. Legal challenges to this memo may change the calculus. An attorney will keep you informed and adjust strategy accordingly
Practical Guidance for Right Now
If you have a pending Adjustment of Status application, do not withdraw your application. Do not leave the United States without Advance Parole, as leaving without it can result in abandonment of your application. Contact your immigration attorney to review your case in light of this memo and discuss interview preparation.
If you are planning to file an I-485, speak with a qualified immigration attorney to evaluate your eligibility, assess any potential negative factors, and build the strongest possible application package before filing.
We Are Here to Help
We are closely monitoring the policy and reviewing how it is being applied, tracking any litigation developments that may affect its implementation, and advising our clients on how to position their cases for success in this changed environment. If you are concerned about what this policy means for your pending or planned adjustment of status application, please contact us. There is no substitute for advice tailored to your specific circumstances.