USCIS issued a Policy Memorandum dated May 21, 2026, regarding Adjustment of Status (AOS). The Policy Memorandum has caused consternation and even panic in the immigration community.
The Policy Memorandum notes that Adjustment of Status is a matter of discretion, which is not news. It’s right in the statute.
However, USCIS goes on to describe Adjustment of Status as “extraordinary relief”, which is clearly not in the statute and arguably inconsistent with the statute and administrative precedent. It then goes on to state, or at least imply, that in most, or maybe all, cases, the applicant for Adjustment of Status must present favorable factors to merit discretion even in the absence of any negative factors. This is contrary to law and to decades of administrative practice.
Others have and will describe what the memo says and doesn’t say and how to advise clients in the wake of the memo. This blog does not attempt to do that. Rather, it provides the top ten reasons why this memo should be challenged in federal court and why such a challenge should be successful (there are more, but I stopped at 10):
REASON 1
It is directly contrary to a precedent decision that binds USCIS. Specifically, MATTER OF ARAI,13 I&N. Dec. 494(BIA 1970) overturned a prior precedent that had held that AOS is “extraordinary relief.” This 1970 precedent decision stated that AOS should generally be granted if there are no adverse factors. In that event, there is no need for the applicant to document equities. Interestingly, the facts in that case involved a B-2 visitor who applied to change status to H and started working before the H was approved. In fact, the change of status to H was denied, but the Adjustment of Status to Permanent Resident that had been denied based on discretion was approved on appeal.
REASON 2
By law, Adjustment of Status is discretionary relief. By law, Adjustment of Status is not “extraordinary relief”. Stating that Adjustment of Status is extraordinary relief creates an entirely different burden of proof that is not consistent with the statute. In fact, it is perfectly “ordinary” relief that has been in the INA since 1952. A variety of waivers of grounds of inadmissibility in section 212 of the INA require extraordinary relief based on statutory requirements of “extreme hardship” or similar. Section 245 Adjustment of Status does not.
REASON 3
The memorandum is inconsistent with the USCIS Policy Manual. In Chapter 10, the Policy Manual states clearly: “absent compelling negative factors, officers should exercise favorable discretion and approve the application.” To the extent that this Policy Memorandum states that discretion should not be exercised favorably even when there are no compelling negative factors, it represents a change in established policy and even a change in the law, and not just an interpretation of policy. In that event, under the Administrative Procedure Act, it cannot be enacted without following the notice and comment rulemaking procedure.
REASON 4
INA Section 245 does not just state that AOS is a matter of discretion. Rather, it states that a “petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe….”. It is unusual to have Congress reference the requirement of a regulation in a statutory section, but this is one example where it did. This provides further fodder for the argument that any change to standards for the exercise of discretion, including making it an extraordinary form of relief, requires a regulation and not a Policy Memorandum.
REASON 5
The cases mentioned in the Policy Memorandum are either irrelevant, outdated, or non-precedential. They involve cases in removal proceedings, waiver cases, cancellation of removal cases, unlawful re-entry cases, district court cases that only apply in the district in which the decision was issued, and cases that predate the INA. Most of the cases simply repeat that AOS is discretionary, which is not in dispute.
REASON 6
A congressional grant of discretion to an agency does not mean that the agency is able to consider improper factors in exercising discretion. For example, if Congress makes available the option of Adjustment of Status, merely seeking Adjustment of Status is an improper basis for a discretionary denial.
REASON 7
In 1997, Congress amended the INA expressly to add section 245 (k). This section, by its very terms, shows Congress’ intent to expand, not limit, eligibility for Adjustment of Status. Specifically, it states that an alien is eligible for Adjustment of Status even if they have violated their status, as long as such violation does not exceed 180 days. (Note that this applies only to employment-based cases.) Even more recently, in 2022, Congress expanded the applicability of section 245 (k) to include EB-5 applicants. The Policy Memorandum is arguably inconsistent with section 245 (k) by stating that, absent outstanding equities, every foreign national with status violations protected by section 245 (k) should be denied as a matter of discretion.
Also in 1997, Congress expanded the availability of “concurrent processing” to include
EB-5, another example of Congress’ intent to expand Adjustment of Status as a “normal” procedure rather than to restrict it to “extraordinary” cases.
REASON 8
In the year 2000, Congress enacted “AC-21,” which, among other things, expanded eligibility for Adjustment of Status by allowing workers whose I-485 applications have been pending for 180 days or more to change jobs or employers in the same or similar occupational classification. This is another example of Congress’ intent to expand the availability of Adjustment of Status, which is completely contrary to the Policy Memorandum’s statement that it is meant to be extraordinary relief only. It is also noteworthy that beneficiaries of this congressionally-authorized Adjustment of Status portability would, in most cases, be denied if they were forced to apply at a US Consulate.
REASON 9
Another example of Congress amending section 245 to expand the class of aliens eligible for relief is section 245 (i). As expanded in 2000 by Congress, section 245 (i) allows for AOS for certain classes of aliens with significant immigration violations which, in the language of the Policy Memorandum, would disqualify most or all applicants.
REASON 10
In 1990, Congress statutorily implemented the doctrine of “dual intent” for H-1B and L-1 visas. By statute, these nonimmigrants may have a clear and unequivocal intent to remain in the United States. Despite the statutory language, USCIS states: “maintaining lawful status in a dual intent nonimmigrant category is not sufficient on its own to warrant a favorable exercise of discretion.” Courts do not look kindly on administrative agencies that clearly disregard both congressional intent and express statutory language.
REASON 11
There are numerous examples of foreign nationals who are eligible for AOS but will not be eligible to process an immigrant visa at a US consulate (see, for example, #8 above). In fact, nationals of 78 countries are indefinitely banned from immigrant visa issuance by Presidential Proclamation. A change in policy, such as is reflected in this Policy Memorandum, is more likely to be subject to judicial review when it doesn’t just result in an inconvenience, but rather precludes any relief at all.
I said I would stop at 10, but I got carried away. I invite others to add to this list. I certainly hope that many or most of these arguments will find their way into complaints challenging the misguided Adjustment of Status Policy Memorandum.
If you have questions about how the AOS policy memo may affect your immigration planning or pending application, please request a consultation with a Klasko attorney.
The material contained in this post does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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