You can read the USCIS policy memo here: Adjustment of Status is a Matter of Discretion and Administrative Grace
What did USCIS announce?
On May 21, 2026, USCIS issued a policy memo addressing adjustment of status. Adjustment of status allows certain eligible applicants who are already in the United States to apply for a green card without leaving the country for consular processing.
The memo emphasizes that adjustment of status is not an automatic right. It is a discretionary benefit. This means that even where an applicant satisfies the technical eligibility requirements, USCIS may still review the full facts of the case before deciding whether the applicant merits approval.
Is this a new policy?
Not really. The memo primarily restates a long standing principle under U.S. immigration law. Adjustment of status has historically been treated as a matter of discretion and administrative grace.
What is different is the tone and adjudication posture. USCIS is reminding officers that adjustment of status should not be treated as a routine benefit in every case. Officers may review the applicant’s immigration history, maintenance of status, unauthorized employment, prior violations, misrepresentations, and whether the applicant’s conduct was consistent with the purpose of the visa used to enter or remain in the United States.
Does this memo bar adjustment of status?
No. The memo does not bar adjustment of status. It does not say that employment based, family based, or investment based applicants cannot file for adjustment of status. It also recognizes that certain visa categories have dual intent, meaning a person may lawfully hold temporary status while also pursuing permanent residence.
However, applicants should expect that USCIS may apply greater scrutiny in some cases, especially where the applicant’s facts raise concerns about status violations, intent, timing, or prior immigration conduct.
What happens if adjustment of status is denied?
A denial of adjustment of status does not necessarily mean denial of the underlying green card process. In many cases, it means the applicant may need to pursue consular processing and schedule an immigrant visa interview at a U.S. consulate abroad in order to obtain the green card. The appropriate next step will depend on the applicant’s specific facts, immigration history, and underlying immigrant visa category.
What does this mean for EB-5 investors?
For EB-5 investors, the memo should be reviewed carefully but not with panic. EB-5 based adjustment of status remains available for eligible investors when a visa number is available. The investor’s capital contribution, job creation impact, and broader economic benefit to the United States may serve as positive discretionary factors.
That said, EB-5 investment does not create an automatic exception. Investors should review their visa status, immigration history, timing of filing, and overall discretionary profile with immigration counsel before filing adjustment of status.
Will USCIS issue more guidance?
The memo specifically states that USCIS may issue further guidance for various adjustment pathways and applicant populations.That is important. Like many immigration related notifications, the memo lacks specific implementation details. The practical impact will become clearer in the coming days as attorneys, applicants, and stakeholders see how USCIS officers apply this guidance in actual adjudications.
Key takeaway:
Adjustment of status remains available, but it should not be treated as purely mechanical. Applicants should evaluate their facts carefully, preserve lawful status where possible, avoid inconsistent conduct, and work with experienced immigration counsel to determine whether adjustment of status or consular processing is the stronger strategy.
Considering adjustment of status or EB-5?
Speak with qualified immigration counsel to review your visa history, eligibility, timing, and discretionary risk before filing.