USCIS Memo May 2026: Adjustment of Status Blocked – EB-3 Must Leave US

On May 21, 2026, U.S. Citizenship and Immigration Services issued Policy Memorandum PM-602-0199, formally recharacterizing Adjustment of Status (Form I-485) as a matter of 'discretionary administrative grace' rather than a routine eligibility-based process. USCIS spokesperson Zach Kahler stated that foreign nationals temporarily in the U.S. who want a green card 'must return to their home country to apply, except in extraordinary circumstances,' marking one of the most significant shifts in green card adjudication in recent memory. Under the new guidance, consular processing through the Department of State is now treated as the default pathway to permanent residence. USCIS officers are directed to evaluate Adjustment of Status applications under a totality-of-circumstances standard, weighing factors such as immigration violations, fraud, failure to depart, family ties, employment contributions, and moral character. Critically, meeting all statutory eligibility requirements under INA Section 245(a) is no longer sufficient — applicants must affirmatively demonstrate positive equities to merit approval. For EB-3 employment-based applicants, this represents a major procedural risk. Workers who entered on temporary visas and filed I-485 applications based on approved immigrant petitions may now face denial if they cannot show affirmative positive factors beyond mere compliance. USCIS specifically flags 'failure to depart as expected' and intent to remain permanently as highly relevant negative factors — a concern for many long-term visa holders currently awaiting priority dates. Dual intent visa holders, specifically those on H-1B and L-1 status, retain some protection. The memo acknowledges that filing for Adjustment of Status is not inconsistent with dual intent. However, a critical footnote clarifies that maintaining lawful dual intent status alone is not sufficient to warrant a favorable exercise of discretion — additional positive factors must still be demonstrated. Employers sponsoring EB-3 workers and foreign nationals currently in the I-485 pipeline should consult immigration counsel immediately to assess case-specific risk. New filings should carefully document positive equities such as community ties, economic contributions, and employer dependency. Applicants who have not yet filed I-485 may want to evaluate whether consular processing is now the safer or more predictable route given this policy shift.