25 Jun The United States Citizenship and Immigration Services New Adjustment of Status Policy and What it Means for Those Seeking Permanent Residency… by Christopher W. Richman
Background
For a foreign national to lawfully enter the United States they require a visa. This is not a surprise or breaking news. However, what many people do not know is that there are two categories of visas, immigrant and non-immigrant. The difference between them is simple: a non-immigrant visa is used for those who wish to visit the United States temporarily and have an intent to return to their home country. The most common examples of this category of visa are a student (F-1) and tourist (B-2). On the other side, immigrant visas are more commonly known as green cards.
Traditionally, to apply for a green card, there was one key requirement: have a lawful entry into the United States. Meaning an individual, even if their status had since expired, entered on any type of non-immigrant visa (for example, student, tourist, or any number of employment visas) and they later had a basis to adjust status to that of a permanent resident, they could do so, without leaving the United States. However, if an individual entered the United States unlawfully (without a visa or without being paroled) and later obtained a basis to adjust status, they are forced to go through a separate process called “consular processing”. For consular processing, the end goal is still a green card, however, the applicant must return to their home country at a consulate or embassy to complete the process..
USCIS’s New Policy
On May 21, 2026, USCIS issued a memorandum changing how the immigration system has worked for several decades. To say this new policy is a seismic shift in the realm of immigration is not an exaggeration.
The new policy essentially eliminates the adjustment of status process. Now, pursuant to the new policy, no foreign national, even with a lawful entry to the United States, may apply for and be granted permanent residency within the United States, unless “extraordinary circumstances” are present. In its rationale, USCIS advises they are returning to the original intent of the law and allows the immigration system to return to its original design. This new policy is further intended to assist USCIS to devote its full attention to individuals who are victims of human trafficking and those applying for naturalization, amongst other items.
There is no debate that the Board of Immigration Appeals (the “BIA”) and Federal Courts have routinely advised that adjusting status is an extraordinary act and one of administrative grace. In the world of immigration, for several types of benefits of relief, USCIS has the discretion to approve or deny. There is not necessarily the perfect application or way to guarantee USCIS approves an application. But what makes this such a sudden shift is that these Courts have described adjustment of status as such for at least the past forty years, yet no change was made.
What Constitutes “Extraordinary Circumstances?”
Even traditionally, USCIS Officers had the discretion to approve or deny an application based on the totality of the circumstances regarding that specific applicant and their application. This will continue to be the standard going forward. Officers will continue to consider the applicant’s criminal history, prior immigration violations, any unlawful status accrued (i.e. overstaying their visa), family ties, and any other factor relevant to the matter that warrants a favorable exercise of discretion.
What This Means Going Forward and Who it Impacts
As of the date of publishing, there are several unknowns. There is no indication of when this new policy will take effect and if there are any classes of visa holders exempt from this new policy.
For what is now known, there is no change for those who planned on applying for residency via consular processing, whether family-based or via employment. This process will stay the same as will the process for those who continue to seek a non-immigrant visa.
For those in the United States with non-immigrant status and had plans to adjust status, that is likely no longer an option. Given this new policy, these individuals must now make plans to return to their home country and be even more careful regarding the expiration date of their status, how many times their visa can be renewed (if any), and ensure they are in full compliance with their visa. Given the materials promulgated by USCIS, there is no outright bar on applying for adjustment of status from within the United States. But, if necessary, an applicant must make sure extraordinary circumstances are present and is ready to present evidence to support them. If not, they will be forced to start the process from scratch, restart from the beginning of the process, and pay the fees once again.
This new policy further leaves many individuals in an impossible position. While many countries have an American consulate or embassy to move forward with consular processing, there are several that do not. If foreign nationals from those countries wish to apply for permanent residency, only time will tell how this new policy impacts them.
Written by Christopher W. Richman, Attorney at KMD Law
References Cited:
USCIS Policy Memorandum (May 21, 2026) 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
https://www.npr.org/2026/05/23/nx-s1-5832399/trump-administration-green-card-abroad