USCIS New Rule May 22 2026: Stricter Discretionary Review Targets Adjustment of Status Applicants

On May 22, 2026, USCIS issued Policy Memorandum PM-602-0199, a significant shift in how the agency frames adjustment of status (AOS). The memo characterizes AOS as an 'extraordinary' discretionary benefit rather than a routine option, asserting that consular processing abroad is the 'ordinary' pathway to permanent residence. An accompanying agency statement goes further, indicating that temporary visitors 'must return to their home country to apply' except in extraordinary circumstances. Critically, the memorandum does not rescind existing adjustment pathways or introduce new statutory bars to I-485 eligibility. USCIS confirmed that adjudicators must still conduct a case-by-case totality-of-the-circumstances analysis. However, the memo explicitly states that maintaining lawful status in a dual-intent visa category — such as H-1B — is 'not sufficient, on its own, to warrant a favorable exercise of discretion,' creating real uncertainty for employment-based applicants who have long relied on AOS as a standard process. For EB-3 applicants and their sponsoring employers, the practical consequences are likely to be significant. The memo highlights adverse discretionary factors including immigration status violations, unauthorized employment, fraud concerns, failure to depart after status expiration, and conduct inconsistent with the visa's original purpose. These factors will now receive heightened attention during adjudications. Employers should prepare for increased Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) focused on discretionary factors, longer adjudication timelines under enhanced review, and the need to more thoroughly document lawful status maintenance and compliance history in AOS filings. Proactive documentation of positive equities — ties to employment, community, and legal compliance — will become more important. Key questions remain unresolved. The memorandum does not specify an effective date or clarify whether it applies to already-pending I-485 cases. Legal challenges are widely anticipated, particularly regarding the agency's reinterpretation of the discretionary framework. EB-3 applicants currently in the AOS process should consult immigration counsel promptly to assess their specific risk profile under this new guidance.