USCIS New Rule May 2026: Adjustment of Status Under Scrutiny, Consular Processing Now Preferred

On May 21, 2026, USCIS released policy memorandum PM-602-0199, formally reaffirming that Adjustment of Status (AOS) under INA Section 245 is a discretionary benefit—not an automatic right—and directing officers to more rigorously evaluate whether applicants genuinely merit approval over the standard consular processing pathway. The memorandum instructs adjudicating officers to weigh the totality of circumstances for each I-485 application, including adverse factors such as false testimony to government agencies, violations of admission or parole conditions, and conduct inconsistent with nonimmigrant status. Positive factors such as long-term U.S. residence, family ties, and moral character remain relevant and must be weighed against any negative findings. For EB-3 applicants maintaining dual-intent status—such as H-1B or L-1 visa holders—the memo clarifies that filing for AOS is not inherently inconsistent with that status. However, holding dual-intent status alone is no longer sufficient to guarantee a favorable discretionary outcome. Each case will be evaluated individually. When USCIS denies an AOS application on discretionary grounds, officers are now required to issue a written denial notice that explicitly analyzes both positive and negative factors and explains why the negatives outweigh the positives. This adds a new layer of documentation to denial decisions. Significant ambiguities remain in the policy. The memo does not specify when or whether certain applicants will be barred from filing AOS within the U.S., does not address pending I-485 applications already in progress, and does not define which positive factors would be sufficient to approve AOS over consular processing. EB-3 applicants and their employers should consult legal counsel to assess how increased scrutiny may affect their specific cases.