USCIS Issues Policy Memo Impacting Green Card Processing, Practices, and Procedures

On May 21, 2026, U.S. Citizen & Immigration Services (USCIS) issued a policy memo disrupting the state of Adjustment of Status (AOS) processing for millions of current and future applicants. In the memo, USCIS describes the grant of an AOS as extraordinary discretionary relief and administrative grace that should not “supersede the regular consular processing of immigrant visas.” Specifically, the policy directs USCIS officers, reviewing AOS applications, to weigh all positive and negative factors cited in the policy memo and USCIS Policy Manual, to determine whether to exercise their discretion in granting an AOS.

AOS is one of two processes by which eligible foreign nationals who are present in the United States can apply for Legal Permanent Resident (LPR) Status. In addition, they can file an application with the U.S. consulate in their home country, via the National Visa Center, for an Immigrant Visa. After an in-person interview and approval, the Immigrant Visa would allow them to reenter the U.S. with LPR status. Many U.S. consulates have lengthy wait times for Immigrant Visa interviews. Moreover, unlike AOS applications adjudicated by USCIS, Immigrant Visa decisions are subject to the doctrine of consular non-reviewability. So, applicants have little to no recourse to challenge Immigrant Visa denials by a U.S. Consulate officer.  Additionally, if any foreign national is outside the U.S. when a new proclamation, travel ban, executive order, or policy is announced it may make it difficult for the foreign national to return to the U.S. as planned.

The option to file an AOS was created in 1952 under section 245 of the Immigration and Nationality Act (INA) and has been expanded to apply to more classes of foreign nationals in the over 70 years since its passage. Millions of people currently in the U.S. on various nonimmigrant statuses, including employment-sponsored, family-sponsored, and humanitarian statuses, choose to file an AOS application because it allows them to apply for Lawful Permanent Resident (LPR) status without leaving their families, jobs, and communities. According to USCIS, in FY25 alone, the agency approved over 740,000 I-485 AOS applications.

How This Policy Could Negatively Impact Employers, Including U.S. Companies

The policy memo uses broad strokes and appears to apply to all AOS applications regardless of whether the applicant otherwise meets the criteria for LPR status, including applications for individuals currently in dual-intent nonimmigrant visa statuses, like H-1B and L-1.  For some applicants, USCIS has already approved their employee-sponsored I-140 application deeming them eligible for an employment-based green card category. However, due to annual per-country caps on green cards, such applicant may be waiting in the U.S. for over a decade, depending on country of birth, priority date, and preference category, until they are able to apply for a green card. During this time, employer-sponsored green card seekers are required to maintain their underlying nonimmigrant status such as H-1B or L-1.

Employers spend a great deal of time, money, and resources securing an approved I-140 for their employees often by completing the PERM process, during which they prove that there was no minimally qualified U.S. worker to perform the duties of the offered position. Permitting I-140 beneficiaries to file an AOS in the U.S. avoids potential disruptions that could affect the continuity of business operations, create inefficiencies in supply chains, or otherwise create burdens on an employer, its other employees, and the green card seeker. Despite the known benefits of allowing such employees to file an AOS, the policy memo indicates that although maintaining employment-based status is a positive factor, it is not dispositive of whether the AOS application may proceed in the U.S. without denial.

Further Womble Analysis Regarding Potential Impact of Policy on Employers and Employees

It has yet to be seen how the new policy will impact processing of current and future AOS applications. Late Friday, May 22, it was reported that a USCIS spokesperson noted that “[w]hile we work to operationalize this, people who present applications that provide an economic benefit or otherwise are in the national interest will likely be able to continue on their current path while others may be asked to apply abroad depending on individualized circumstances.” Business Insider- Economic Benefit & National Interest. However, no additional guidance has been issued on how the agency will define “economic benefit” or “national interest.” Employers and employees alike are hoping for additional guidance.

Steps for Employers and Employees to Take Now

Our team will continue to monitor processing trends and policy updates. In the meantime, we recommend that employers and individuals take the following precautions:

For employees who have already filed their AOS applications or who may be filing their AOS applications soon:

1. Review, with qualified immigration counsel, the positive and negative factors outlined in the policy memo and the USCIS Policy Manual to flag or potentially mitigate any risks, 
2. Build further evidence of positive factors such as evidence of good moral character, until further guidance is provided, and if your AOS interview has already been scheduled, compile documentation demonstrating positive factors warranting a favorable grant of discretion (including consulting with immigration counsel on whether you may argue economic benefit or national interest factors should apply despite no current definitions for what those exceptions may entail), and 
3. Devise a backup plan to leverage consular processing if needed.  

For employees who are not likely to file a green card application in the next year:

1. Waiting additional guidance is likely a good option since there could be additional information or guidance coming, and.
2. Continue to be diligent in your efforts in maintaining good moral character- always maintain non-immigrant status- check your I-94 record meticulously each time you or family members return to the U.S., update your address pursuant to USCIS instructions, stay out of trouble including traffic tickets or any type of trouble that could weigh negatively in the determination by the Officer, pay your taxes, etc., and 
3. Ensure your family understands the importance of the above. 

Womble Bond Dickinson stands ready to support employers and employees navigating these changes. Please reach out to [email protected], or [email protected] for more information.