USCISJDSupra Immigration · 3 min read
USCIS Memorandum May 22 2026: Adjustment of Status Not Guaranteed — What EB-3 Applicants Must Know
USCIS issued a policy memo on May 22, 2026, reaffirming that Adjustment of Status is discretionary, not a right. Officers will scrutinize immigration history and visa compliance more closely, though EB-3 eligibility rules remain unchanged.
On May 22, 2026, U.S. Citizenship and Immigration Services (USCIS) issued a significant policy memorandum clarifying that Adjustment of Status (AOS) under INA §245 is a discretionary immigration benefit — not an entitlement or a substitute for consular processing abroad. The memorandum reminds both adjudicators and applicants that USCIS officers retain broad authority to deny AOS applications even when statutory eligibility requirements are otherwise met.
For EB-3 employment-based applicants, the memo does not eliminate the ability to file Form I-485 or change the underlying eligibility criteria for green card petitions. However, it signals a shift in how officers may evaluate applications going forward. The guidance directs officers to assess the "totality of the circumstances," with particular attention to an applicant's maintenance of lawful status, visa compliance, unauthorized employment, prior immigration history, and any evidence of misrepresented nonimmigrant intent.
In practice, this means EB-3 applicants with past status violations, gaps in lawful status, or unauthorized work history may face heightened scrutiny and an increased risk of discretionary denial — even if their case is otherwise approvable on the merits. Applicants with clean immigration histories are less likely to be materially impacted by this guidance.
USCIS has not yet provided detailed operational guidance on how this memo will change adjudication rates or timelines. Immigration attorneys are advising clients to proactively document their compliance history and consult legal counsel before filing, particularly if there are any prior immigration issues that could be flagged under this expanded discretionary review.
The long-term impact of this policy will depend heavily on how USCIS officers implement the guidance in practice. Applicants and employers should monitor adjudication trends closely in the coming months and work with experienced immigration counsel to assess whether consular processing abroad may be a more predictable path in certain cases.