DHS Clarifies Green Card Policy: EB-3 I-485 Applicants May Not Need to Leave US in 2026

The Department of Homeland Security issued a clarification following widespread concern over a USCIS policy memorandum that suggested individuals seeking green cards must generally return to their home countries to complete the process, except in 'extraordinary' circumstances. DHS told major outlets including The New York Times, Bloomberg, and The Wall Street Journal that the policy does not represent a sweeping change and will be applied on a case-by-case basis at individual officer discretion. For most employment-based applicants — including those in EB-1, EB-2, and EB-3 categories — the clarification is largely reassuring, provided they hold dual-intent visa status (H-1B or L-1), have continuously maintained lawful status, and otherwise qualify for adjustment of status via Form I-485. DHS indicated this group should not be significantly impacted by the memo. However, significant ambiguity remains for applicants in other nonimmigrant categories such as O, E, or TN visas, as well as for those who have experienced prior status violations of fewer than 180 days and would normally qualify to adjust under INA 245(k). USCIS officers have already been observed asking applicants during interviews why they are not applying from their home countries, indicating the policy is already shaping adjudications in practice. Family-based applicants with visa overstays face the most serious risk. If required to depart for consular processing, they could trigger three- or ten-year reentry bars. Children in dependent statuses (H-4 or L-2) who age out of eligibility after their I-485 is filed but cannot secure another qualifying status represent another vulnerable population, as the historically lenient approach to their cases may no longer be guaranteed. Legal challenges to the original memorandum are widely anticipated. Until greater clarity emerges, immigration attorneys strongly recommend that applicants maintain meticulous records of lawful status, document clean immigration and criminal histories, and avoid any unauthorized gaps in employment or visa compliance.