Adjustment of Status Discretion – New USCIS Policy Memorandum

Adjustment of Status Discretion is now the center of the green card strategy for many people already inside the United States. On May 21, 2026, USCIS issued Policy Memorandum PM-602-0199, titled Adjustment of Status is a Matter of Discretion and Administrative Grace, and an Extraordinary Relief that Permits Applicants to Dispense with the Ordinary Consular Visa Process. The memo does not rewrite INA § 245. It does something more practical. It tells officers to treat adjustment of status as an exception to the ordinary immigrant visa process, not as the default path for every person physically present in the United States.

The change matters because many green card cases are not decided only by eligibility. A person may have an approved I-130, I-140, EB-1A petition, EB-2 NIW petition, or labor certification pathway and still face a separate discretionary question at the Form I-485 stage. The memo gives USCIS officers a stronger framework to ask whether the person should receive permanent residence inside the United States or should have pursued, or should still pursue, immigrant visa processing through a U.S. consulate abroad.

What the Memo Says

The memo starts from a basic proposition: adjustment of status is not a right. It is a discretionary benefit. USCIS repeats that even an applicant who satisfies statutory eligibility must still persuade the agency that approval is warranted as a matter of discretion. This is not new law. The memo relies on older BIA and federal court language describing adjustment as an “extraordinary” act of administrative grace.

The agency’s stated concern is that adjustment of status lets a person avoid the ordinary immigrant visa process. The memo frames consular processing as the normal route and adjustment as an exception for people who are already in the United States and who qualify under INA § 245. That framing gives officers more room to question cases where the person entered temporarily, remained in the United States, and then used adjustment as the permanent residence pathway.

The memo identifies several factors officers should consider when deciding whether to exercise discretion favorably:

• Whether the person complied with the terms of admission or parole. This includes unauthorized employment, overstays, failure to maintain status, or work outside the scope of a nonimmigrant classification.
• Whether the person’s conduct after entry was inconsistent with the purpose of admission. This matters most for visitor entries, parole entries, and other temporary categories where the person represented a temporary purpose at the visa, ESTA, port-of-entry, or parole stage.
• Whether consular processing was available. If an immigrant visa route existed abroad, USCIS may treat the decision to seek adjustment inside the United States as a negative discretionary issue, depending on the facts.
• Whether there are unusual or outstanding equities. The memo states that the absence of negative factors alone does not necessarily prove that discretion should be exercised favorably.
• Whether the record supports permanent residence as being in the best interest of the United States. Officers are directed to weigh immigration history, family ties, moral character, compliance, and other positive and negative factors.

The memo also states one important limit: applying for adjustment of status is not inconsistent with maintaining a dual-intent nonimmigrant status. That sentence matters for H-1B, L-1, and, in practice, O-1 strategy. But the memo adds that maintaining a dual-intent status is not enough by itself. The applicant still needs a record that supports a favorable exercise of discretion.

How USCIS Will Likely Apply It

The memo gives officers a vocabulary for denials that may previously have been harder to justify. The practical risk is not limited to people who are technically ineligible. It reaches people who are eligible but whose immigration history creates a discretionary problem.

USCIS is likely to use this memo most aggressively in cases involving:

• B-1/B-2 visitors who enter temporarily and then file for adjustment. The closer the adjustment filing is to entry, and the stronger the evidence of prior immigrant intent, the more difficult the discretionary posture becomes.
• ESTA or Visa Waiver Program entrants. ESTA entrants have limited adjustment options, generally centered on immediate relatives of U.S. citizens. Employment-based adjustment from ESTA remains structurally dangerous and often unavailable.
• Parolees whose parole purpose has ended. The memo emphasizes that parole is temporary and that parolees are expected to depart or return to DHS custody once the parole purpose has been served.
• Employment-based applicants who failed to maintain status. INA § 245(k) may help certain EB applicants with limited violations, but it does not erase every discretionary issue.
• Applicants from designated high-risk countries whose USCIS benefits are already paused or subject to enhanced review. In those cases, the adjustment memo adds a second layer of risk: the case may be delayed for vetting and then examined under a stricter discretionary lens.

The central operational change is this: Form I-485 is no longer just a filing mechanics issue. It becomes a narrative and risk issue. The applicant must be able to explain why adjustment inside the United States is appropriate, not merely why a visa number is available and the underlying petition is approvable.

High-Risk Countries: The Memo Adds Pressure to an Already Stalled System

The adjustment memo cannot be read in isolation. USCIS has already used separate high-risk-country guidance to place certain benefit requests on hold, apply enhanced screening, and treat country-specific factors as negative discretionary considerations in certain immigration benefit adjudications. For nationals of affected countries, this means adjustment strategy now has two separate problems: movement and merit.

The movement problem is the pause. A person may file an I-140, I-130, I-485, I-765, or I-131 and still see little or no adjudicative movement if the case is covered by a USCIS hold or enhanced review policy. Premium Processing may not solve that if the agency does not treat the case as ready for final adjudication. Filing may still preserve a priority date or place in line, but it may not create immediate relief.

The merit problem is discretion. Once the case moves again, the officer may still ask whether adjustment should be granted inside the United States. For high-risk-country applicants, the agency may combine country-specific vetting concerns with the new adjustment framework. That does not mean every case should be denied. It means the record must be built for the specific discretionary environment that now exists.

Consular processing is not always a safer alternative for affected nationals. The Department of State has separately announced immigrant visa issuance pauses for nationals of a broad list of countries, subject to limited exceptions such as certain dual nationals and adoption-related exceptions. A person from an affected country may therefore face a blocked or delayed USCIS route inside the United States and a blocked or delayed immigrant visa route abroad.

For these cases, the practical question is not “adjustment or consular processing?” The question is whether either route is presently capable of producing a final green card outcome, and what status, work authorization, travel risk, and filing posture can be preserved while the pause remains in place.

B-1/B-2 Visitors Inside the United States

B-1/B-2 is now one of the highest-risk categories for adjustment planning. A visitor classification is built around temporary intent. If a person enters as a visitor and then quickly pursues permanent residence, USCIS may examine whether the person’s conduct is inconsistent with the stated purpose of admission.

This does not mean every B-1/B-2 adjustment case is impossible. Immediate relatives of U.S. citizens have long had more forgiving statutory treatment for certain adjustment bars. But the memo is not only about statutory bars. It is about discretion. A marriage-based case, family-based case, or employment-based case filed after visitor entry may now require a more careful record on timing, intent, changed circumstances, lawful conduct, and why adjustment inside the United States is justified.

For employment-based immigrants, the B-1/B-2 problem is sharper. Filing an EB-1A or EB-2 NIW petition does not give lawful status, work authorization, or permission to remain beyond the I-94 period. A visitor who waits in the United States after the authorized stay expires may create eligibility and discretion problems. A visitor who works, performs services, or operates a U.S. business while in B status may create additional violations.

The cleanest visitor strategy is often not to convert a visitor stay into a green card waiting room. The safer structure is usually to evaluate immigrant eligibility, file the strongest available immigrant petition when appropriate, and preserve lawful status through a category that can actually support the person’s U.S. work and long-term planning.

ESTA and Visa Waiver Program Entrants

ESTA cases should be treated as especially limited. A person admitted through the Visa Waiver Program generally cannot extend status or change status. Adjustment is also restricted, with the most important practical exception being certain immediate relatives of U.S. citizens.

For artists, founders, consultants, and other professionals considering EB-1A, EB-2 NIW, or other employment-based routes, ESTA is a poor platform for adjustment planning. It may be useful for a short visit, meetings, or permissible business activity, but it is not a stable bridge to employment-based permanent residence inside the United States.

The new memo makes this worse, not better. USCIS can now frame adjustment from a temporary admission as an attempt to bypass the ordinary consular process. For ESTA entrants, the statutory and discretionary risks overlap. That is a bad posture for any employment-based green card strategy.

O-1 and P Visa Holders Pursuing EB-1, EB-2, or NIW

For O-1 and P visa holders, the memo does not end the green card strategy. It changes how the adjustment stage should be documented. O-1 holders, in particular, have a more workable long-term structure because the filing of a permanent labor certification or immigrant petition is not, by itself, a basis to deny O-1 classification, extension, admission, or change of status. P classifications also have recognized flexibility, though the facts and subcategory matter.

For an O-1 artist pursuing EB-1A, EB-2 NIW, or another immigrant route, the strongest posture is usually:

• Maintain O-1 status through the green card process. Do not rely on a pending I-485 as the only basis for remaining in the United States if an O-1 extension is available and strategically sound.
• Keep the O-1 work record clean. Work only within the approved petitioner, agent, employer, itinerary, and authorized terms. Unauthorized work will become more costly under a discretionary analysis.
• File the I-140 when the record is ready. EB-1A and NIW petitions can often be filed before the adjustment filing is ripe or strategically safe.
• Separate petition strength from adjustment risk. A strong EB-1A or NIW case does not automatically make the I-485 safe if the person has status violations, unlawful employment, travel problems, or high-risk-country vetting holds.
• Evaluate consular processing only with country-specific risk in mind. For nationals affected by visa issuance pauses or entry restrictions, leaving the United States for consular processing may create a trap.

For O-1 and P holders from high-risk countries, the practical strategy may be to file the immigrant petition to preserve the record and priority date, maintain the nonimmigrant status if possible, and delay or carefully time the I-485 decision depending on visa bulletin movement, USCIS hold policy, travel needs, and the person’s risk profile.

For more on talent-based green card routes, see Abachi Law’s guidance on talent-based visas, EB-1A extraordinary ability petitions, and the firm’s prior analysis of travel bans versus USCIS adjudication holds.

People Inside the United States With Pending Immigrant Routes

The memo affects people inside the United States in different ways depending on their current status. The starting point is not the immigrant petition. The starting point is the person’s present immigration posture.

People in valid dual-intent or dual-intent-like status

H-1B and L-1 remain stronger platforms for adjustment because they are recognized dual-intent categories. O-1 is also a strong platform in practice, even though its structure differs from H-1B and L-1. The key is maintaining status while the immigrant petition and adjustment case move forward. The memo confirms that applying for adjustment is not inconsistent with maintaining a dual-intent status, but it also warns that lawful status alone does not guarantee a favorable discretionary outcome.

People in single-intent or temporary-purpose categories

B-1/B-2, ESTA, some student-related situations, and parole-based entries require more caution. USCIS may ask whether the person used a temporary category to enter and then converted that presence into a permanent residence strategy. The answer may depend on timing, evidence of changed circumstances, prior statements to consular and border officers, and whether the person violated the terms of stay.

People out of status or with unauthorized employment

These cases are now more exposed. Some employment-based applicants may have limited protection under INA § 245(k), which can forgive certain violations of no more than 180 days after the most recent lawful admission. But 245(k) is not a general amnesty. It does not cure every problem, it does not grant status, and it does not prevent USCIS from weighing the facts negatively in a discretionary analysis.

Adjustment Versus Consular Processing

The memo tries to push the system back toward consular processing as the ordinary immigrant route. But the real-world answer is not automatic. Consular processing can be slower, riskier, or unavailable for some applicants, especially nationals of countries affected by visa issuance pauses, entry restrictions, administrative processing, or local post instability.

The decision between adjustment and consular processing should now be made through a structured risk analysis:

• Current status: Is the person in valid nonimmigrant status, parole, a grace period, or no status?
• Admission history: Did the person enter on B-1/B-2, ESTA, O-1, P, F-1, H-1B, L-1, parole, or another category?
• Intent record: What was said at the visa application, ESTA application, port of entry, or parole request?
• Work history: Has the person performed any unauthorized work, including unpaid or informal work that may still count as activity inconsistent with status?
• Country risk: Is the person a national, citizen, or sometimes born in a country covered by USCIS hold guidance, travel restrictions, or DOS visa issuance pauses?
• Travel risk: If the person leaves the United States, can they actually receive an immigrant visa and return?
• Timing: Is the visa category current, is the I-140 approvable, and is there any strategic reason to delay the I-485?
• Family and equities: Are there U.S. citizen or LPR family members, long-term lawful residence, tax compliance, community ties, or other positive factors that can support discretion?

For some clients, adjustment remains the right path. For others, filing only the immigrant petition and preserving nonimmigrant status may be safer than rushing into an I-485. For high-risk-country nationals, consular processing may be legally available but practically blocked. That distinction matters.

Practical Impact on EB-1A, EB-2 NIW, and Artist Immigration Strategy

For artists, creatives, founders, researchers, designers, and performers, the memo changes the sequencing of permanent residence strategy. It is no longer enough to ask whether the person qualifies for EB-1A or NIW. The better questions are:

• Can the person maintain a lawful, work-authorized nonimmigrant platform while the immigrant case is pending? O-1, P, H-1B, or L-1 may be more important now as status-preservation tools.
• Should the I-140 be filed before the I-485? In many cases, yes. Filing the immigrant petition may preserve the route without immediately triggering the full adjustment discretion issue.
• Is Premium Processing worth it? For high-risk-country cases under adjudicative hold, Premium Processing may not produce a usable decision until the hold is lifted or the case clears enhanced review.
• Should the applicant avoid international travel? If the person is from a country subject to visa issuance pauses or entry restrictions, travel can create a serious risk of being unable to return.
• Does the record explain why adjustment is appropriate? The I-485 package may need a more deliberate discretionary record, not just forms, medicals, and civil documents.

For O-1 artists pursuing EB-1A, the safest structure is often to keep the O-1 active, avoid unauthorized side work, file a strong EB-1A petition when ready, and approach adjustment only after reviewing the applicant’s full immigration history. For NIW applicants, the same logic applies, especially where the person is in a temporary category that does not comfortably support long-term U.S. residence or employment.

For additional background on immigration options for artists and creatives, see Abachi Law’s artist visa guide and general immigration services.

Who Is Most Affected

The memo is broad, but the practical impact is not equal across all cases. The most affected groups are:

• B-1/B-2 and ESTA entrants who entered for temporary purposes and then seek permanent residence inside the United States.
• Parolees whose parole purpose has ended and who seek adjustment rather than departure or another authorized pathway.
• Employment-based applicants with gaps in status, unauthorized employment, or activity outside the terms of admission.
• High-risk-country nationals whose USCIS benefits are paused, subject to enhanced vetting, or exposed to country-specific discretionary factors.
• Applicants relying on adjustment as a fallback after entering on a category that was never designed to support long-term residence.

The less affected groups are those who can maintain a clean dual-intent or dual-intent-like status, have no status violations, have strong positive equities, and can explain why adjustment inside the United States is consistent with the structure of their lawful admission and immigrant pathway.

Who Is Not Automatically Harmed

The memo does not automatically harm every adjustment applicant. It does not revoke approved petitions. It does not make EB-1A, EB-2 NIW, family-based immigrant petitions, or O-1 extensions unavailable. It does not say that dual-intent applicants are acting improperly by filing Form I-485 while maintaining status.

The memo also recognizes that some categories may have special adjustment structures, statutory exceptions, or pathways where adjustment is the only practical route. But those exceptions should not be assumed. Each case needs a category-specific analysis, especially where the applicant entered through parole, ESTA, B-1/B-2, or has any unlawful presence, unauthorized employment, or misrepresentation issue.

Bad Assumptions to Kill

• “If I am eligible for adjustment, USCIS must approve it.” Wrong. The memo is built around the opposite point. Eligibility and discretion are separate.
• “An approved I-140 protects my status.” Wrong. An I-140 approval does not give lawful stay, work authorization, or travel permission.
• “I can enter on B-2 or ESTA and then decide to file a green card later.” Sometimes facts change, but using a temporary visitor entry as a planned green card bridge is now more dangerous.
• “O-1 to EB-1A is always safe.” The route is often strong, but safety depends on maintaining O-1 status, avoiding unauthorized work, and building a clean adjustment record.
• “Consular processing solves the discretion problem.” Not always. For some nationals, consular processing may be delayed or paused. Leaving the United States can create a return problem.
• “Premium Processing solves a USCIS pause.” Not necessarily. Premium Processing does not eliminate national-security review, country-specific holds, or discretionary adjudication issues.
• “No negative factors means approval.” The memo says the absence of adverse factors alone may not establish the unusual or outstanding equities needed in some cases.

Facts Needed Before Choosing a Strategy

Before advising someone inside the United States to file Form I-485, delay adjustment, pursue consular processing, or focus first on a nonimmigrant extension, the following facts matter:

• Exact current status and I-94 expiration date. Visa stamp validity is not the same as authorized stay.
• Every U.S. entry and admission category. B-1/B-2, ESTA, O-1, P, F-1, H-1B, L-1, parole, and other categories carry different consequences.
• Any unauthorized work or status violation. This includes freelance work, unpaid work, remote work tied to U.S. activity, or work outside an approved petition.
• Country of citizenship, nationality, and place of birth. High-risk-country policies may turn on different country connections depending on the specific guidance.
• Pending and approved filings. I-129, I-140, I-130, I-485, I-765, I-131, and consular processing steps must be mapped together.
• Travel needs. A person who cannot safely leave and return needs a different strategy from someone with a stable dual-intent visa and no country-specific restrictions.
• Positive equities. Family ties, long-term lawful presence, tax compliance, professional contribution, public benefit, and clean immigration conduct may matter more under this memo.

Bottom Line

The May 21, 2026 USCIS memo does not abolish adjustment of status. It makes adjustment more discretionary, more fact-sensitive, and more vulnerable for people whose U.S. presence began as temporary, parole-based, visitor-based, or otherwise inconsistent with a later permanent residence strategy.

For people already inside the United States, especially those from high-risk countries, the strategy should not begin with “Can we file the I-485?” It should begin with a harder question: What is the safest immigration platform while the immigrant route is pursued, delayed, paused, or challenged?

For O-1 and P visa holders pursuing EB-1, EB-2, or NIW routes, the memo does not close the door. It raises the cost of sloppy sequencing. Maintain status, preserve the work authorization structure, file the immigrant petition when the record is ready, and treat the adjustment stage as its own legal and discretionary case.