USCIS New Rule May 2026: Adjustment of Status Now Discretionary, EB-3 May Need Consular Processing

On May 21, 2026, USCIS released a landmark policy memorandum reframing Adjustment of Status (AOS)—the process of applying for a green card from within the United States—as a discretionary, extraordinary form of relief rather than a standard entitlement. The memo instructs adjudicators to treat AOS as an 'extraordinary act of administrative grace,' a significant departure from prior practice where eligible applicants were generally approved unless found inadmissible. Under the new framework, USCIS officers must conduct a totality-of-the-circumstances analysis when evaluating AOS applications. Factors weighing against approval include immigration violations such as overstays or unauthorized employment, failure to comply with visa conditions, fraud or misrepresentation, and conduct inconsistent with the stated purpose of entry. Critically, deliberate attempts to avoid consular processing may now be counted heavily against an applicant. The memo has particularly significant implications for dual-intent visa holders—H-1B, H-4, L-1, and L-2 workers—who have historically been among the lowest-risk AOS applicants. Under the new policy, even fully compliant dual-intent workers could theoretically be required to depart the U.S. and complete immigrant visa processing at a U.S. consulate abroad, as a matter of USCIS discretion. This shift comes at a challenging time for consular processing. The U.S. Department of State has experienced major staff reductions, increasing backlogs at consulates worldwide. Additionally, DOS has suspended immigrant visa processing for nationals of 75 countries, meaning many applicants forced into consular processing face significant delays or outright suspension of their cases. USCIS has not yet announced when the new discretionary review standard will take effect for pending I-485 applications, nor has it clarified how applicants already in the AOS pipeline will be affected. The agency stated it will issue further category-specific or population-specific guidance in the future. EB-3 applicants currently in the U.S. should consult with an immigration attorney promptly to evaluate their options before further policy changes take effect.