A recent policy memo issued by the U.S. Citizenship and Immigration Services (USCIS) has sparked significant concern among immigration advocates, attorneys and immigrant families. While the memo does not change the law, many fear it could make it harder for certain immigrants to obtain green cards without leaving the United States.
The guidance, released on May 21, 2026, focuses on a process known as adjustment of status. This process allows eligible immigrants already in the United States to apply for permanent residency, commonly known as a green card, without having to return to their home country for an interview at a U.S. consulate.
For decades, adjustment of status has served as an important pathway for family members of U.S. citizens, workers and others who qualify for permanent residence. Congress created the process in part to promote family unity and avoid forcing people to leave the country during lengthy immigration proceedings.
The current controversy stems from both the language of the new memo and an accompanying USCIS announcement. The announcement states that immigrants who are in the United States temporarily and want a green card should generally return to their home country to apply, except in “extraordinary circumstances.” It also describes adjustment of status as a “loophole,” language that many immigration experts view as misleading and inflammatory.
The memo itself is more nuanced. It does not eliminate adjustment of status or require applicants to leave the country. Instead, it emphasizes that approval of adjustment applications is discretionary, meaning immigration officers can weigh both positive and negative factors when deciding a case.
However, the memo encourages officers to treat overstaying a visa or remaining in the United States after temporary status expires as a significant negative factor. This has raised alarm because many people who are legally eligible to adjust status have, by definition, remained in the country after their original visa status ended. In fact, immigration law specifically allows certain categories of applicants, including many immediate relatives of U.S. citizens, to apply for green cards even if they have fallen out of status.
Critics argue that treating an overstay as a major strike against applicants conflicts with the purpose of the law. They note that Congress intentionally created adjustment of status to help people who become eligible for permanent residence after arriving in the United States, often through family relationships or employment opportunities.
Immigration advocates also point out that the memo selectively quotes past court and administrative decisions. While the memo highlights language describing adjustment as a discretionary benefit, it omits other passages from the same cases stating that favorable factors such as family ties, long-term residence and hardship often justify approval.
Another concern is uncertainty about how USCIS officers will apply the guidance. Reports from around the country suggest that some officers are already asking applicants detailed questions about why they remained in the United States after their visa expired, when they decided to stay permanently and why they are pursuing adjustment of status rather than applying through a U.S. consulate abroad.
Applicants with pending cases should be prepared to explain their circumstances and provide evidence of positive factors, including family relationships, community ties, employment history and hardship that could result from being forced to leave the country.
We strongly caution against leaving the United States to pursue consular processing without first consulting an experienced immigration attorney. Departing the country can trigger additional legal barriers, including multi-year reentry bans for some individuals who have accumulated unlawful presence in the United States. In certain cases, leaving may create immigration problems that did not previously exist.
Importantly, the memo applies only to adjustment of status applications under one specific section of immigration law, known as INA §245(a). It does not directly affect several other humanitarian and special immigrant categories.
Although much remains uncertain, the memo does not change the underlying law governing adjustment of status. Nevertheless, it reflects a broader effort to discourage eligible immigrants from using legal pathways to permanent residence and may lead to more difficult adjudications in the months ahead.
Barbara Wong-Wilson is an attorney at Mission Law & Advocacy, P.C. and SW Law Group P.C. If you have any questions on U.S. immigration matters, please feel free to reach out to wo**@*********ws.com or wo**@****pc.com.
