On May 21, 2026, US Citizenship & Immigration Services (USCIS) issued a new policy memorandum (PM-602-0199) changing the adjudication standard for permanent residence applications, i.e., green cards, filed within the United States. For employers who sponsor foreign national employees, the implications may be significant, and strategic action should be evaluated now.
The policy memo focuses on the USCIS’s power of discretion in the adjudication of adjustment of status (AOS) applications. The final step in achieving U.S. permanent residence may be completed through an AOS filing with USCIS in the United States or via immigrant visa processing at a U.S. consulate abroad. While the law and AOS eligibility have not changed, the memo and related USCIS announcements indicate a significant shift in the agency’s view of AOS. Specifically, USCIS announced that individuals should, as matter of course, leave the United States to consular process and that AOS will be granted only in extraordinary circumstances. USCIS officers are instructed to weigh positive and negative factors about the applicant to decide whether discretion warrants the extraordinary benefit. According to USCIS, AOS should no longer be ordinarily considered the last step of the green card process, which is a departure from decades of adjudicatory precedent.
Because employees have routinely been able to adjust status from within the United States, US employers with immigration sponsorship programs may have limited exposure to consular processing. It is important for employer sponsors to familiarize themselves with the steps, nuances, and challenges of consular processing to understand the potential impact on their workforce.
The immigrant visa process is facilitated by the U.S. Department of State and starts at the National Visa Center (NVC). Instead of filing an AOS application with USCIS when they become eligible, employees coordinate the process with the NVC and their designated consulate. Individuals must generally interview at the designated consulate in their country of nationality or residence. Exceptions may be allowed in certain circumstances, particularly when consulate services are unavailable in the country of nationality or residence.
In the employment-based green card sponsorship process, the employer must first file a Form I-140 petition for the immigrant worker with USCIS and must specify whether the employee will adjust status or consular process. This requires careful strategic assessment. Many sponsored employees, especially those born in backlogged countries, typically wait several years between I-140 approval and the final step of the process. While it is possible to later select a different option than the one indicated on Form I-140, there are nuances and complexities that need to be considered on a case-by-case basis. For example, switching to AOS is easier because USCIS will already have the I-140, but switching to consular requires an additional filing, which has an additional cost and lengthy processing times, with USCIS notifying the NVC of the approval.
Once the sponsored employee becomes eligible for the final step of the green card process, the NVC will request the visa fee, completion of Form DS-260, and supporting documentation. The NVC will review and hold the complete file until the consulate schedules the visa interview. The individual will complete a medical exam and attend the visa interview, and if the outcome is favorable, they will receive a visa stamp in their passport, usually within a matter of a few business days. The process may be lengthier if the consular officer requires added documentation or time to adjudicate the visa.
The biggest variable in the timeline is how long it will take the consulate to schedule the visa interview once NVC deems the file documentarily complete. Visa interview availability varies across consulates, ranging from a few weeks to months or even years. Wait times, which are consulate-specific, are affected by numerous factors, including application volume, staffing levels, and changes in immigration policies and priorities. For example, during the pandemic, consular processing operations were significantly limited to the point where routine cases remained on hold for many months. Reductions in staffing across consulates have also affected processing capacity abroad. Requiring more applicants to consular process, as instructed in the policy memo, will add further strain on the immigrant visa processing capacity.
To further complicate the consular process, due to an executive order, consular processing of immigrant visas for nationals of 75 countries designated as high-risk is currently paused. For these individuals, consular processing is not an option. Filing AOS is their only option, but it may also be unsuccessful unless USCIS determines that they qualify for the extraordinary benefit of AOS, under this most recent policy update. Further, under the broader discretionary analysis framework, the USCIS adjudicator may potentially deny the AOS on the basis that the individual is from a high-risk country. Practically speaking, while the new USCIS policy memo and the pause on consular processing remain in effect, certain impacted individuals will not be able to attain U.S. permanent residence.
Waiting for the interview date and coordinating an international trip within a matter of a few weeks may be disruptive to both the employee and their family, as well as the employer sponsor. Typically, consulates notify individuals a month in advance of the interview date. Employees need to ensure that their planned travel includes sufficient time for completion of medical exams, attendance at the visa interview, and receipt of the passport. They also need to leave room for unexpected delays and consulate closures due to local holidays. The bottom line is that the need to travel abroad with short notice and in some instances for an uncertain period will cause business disruption. While AOS processing times are also lengthy, employees with pending AOS cases can stay in the United States and maintain work authorization pursuant to a temporary employment visa or an AOS-based work permit. With consular processing, employers must consider contingency plans in the event the immigrant visa is delayed or denied, as the individual will likely be unable to return to the U.S. to settle their affairs.
The impact of the AOS policy memo is already evident with USCIS officers asking applicants additional questions to determine AOS eligibility, including why they chose AOS over the consular process. As a result, employers may face increasing disruption in business continuity if US-based employees will now have to depart and complete the process abroad. Employers can benefit by reviewing their sponsored workforce to understand the current stage of each sponsored employee’s process and determine the appropriate action for the employer and the employee based on the circumstances of each case. Whether AOS or consular processing is selected as the final step in the employment-based green card process, it is important to remember that it is the employee’s application, and the strategy for each case may differ based on individual circumstances. The policy memorandum may face legal challenges and may ultimately be reversed, but until that happens, its impact will be felt in the pursuit of permanent residence, which for many defines the American Dream.
The material contained in this article 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.
Reprinted with permission from the June 15, 2026 edition of The Legal Intelligencer© 2026 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.
