USCIS New Rule May 2026: Must Leave US to Get Green Card Under AOS Policy Shift

On May 21, 2026, USCIS issued Policy Memorandum PM-602-0199, formally recharacterizing Adjustment of Status (AOS) under INA Section 245 as an extraordinary discretionary benefit—not a routine pathway to permanent residence. Effective immediately, the memorandum applies to all pending and future I-485 filings, signaling a materially more restrictive adjudication posture. Although AOS has functioned as the default mechanism for employment-based green cards for decades—particularly given multi-year visa backlogs—the memorandum directs officers to treat the choice to file AOS rather than pursue consular processing abroad as a factor warranting heightened scrutiny. Officers are also instructed to weigh any post-admission conduct 'inconsistent with the purpose' of the applicant's nonimmigrant status as an adverse discretionary factor. For EB-3 applicants and their sponsoring employers, the practical risk is significant. Even applicants who satisfy all statutory eligibility requirements may face denial based on discretionary grounds. The memorandum explicitly warns that holding a dual-intent status such as H-1B or L-1 is 'not sufficient, on its own, to warrant a favorable exercise of discretion,' introducing new uncertainty for a population previously considered well-protected. Single-intent visa holders—including F-1 students, TN professionals, and E-3 workers—face potentially greater exposure, as USCIS may interpret immigrant intent as inconsistent with the nature of those statuses. Employers with large foreign national workforces should immediately audit active AOS cases and reassess whether consular processing may be a more viable or less risky path forward. Immigration counsel strongly advise employers to review all pending I-485 filings for potential adverse factors, prepare responses to anticipated Requests for Evidence, and engage in proactive workforce planning to account for possible delays, denials, or required departures for consular processing.