The Bombshell Adjustment of Status Memo Catch 22: Try to Adjust Status or Consular Process?
Posted on May 29, 2026
By now, you may have heard of the bombshell adjustment of status memorandum released by USCIS last week. In that memo, USCIS emphasizes that the grant of adjustment of status is “an extraordinary matter of discretion” and was not meant to “supersede the regular consular processing of immigrant visas.” While it is unclear how exactly it will be implemented or whether it will be invalidated by the courts, it is clear that, as of today, there is a new calculus in determining whether one should seek to adjust status or consular process. Any nonimmigrant – a visitor (B or ESTA/VWP), student (F), exchange visitor (J-1), professional (H-1B), business executive/manager/specialist (L-1), individual with extraordinary or distinguished ability (sciences, arts, etc.…) (O-1), athletes/cultural workers (P) religious workers (R-1) – who is located in the US and has an interest in and legal basis for immigrating through a family, immediate relative, employment or diversity lottery immigration category must consider the potential ramifications of the new memo.
The underlying law has not changed. That law has permitted hundreds of thousands of individuals to adjust status every year, allowing them to become US legal permanent residents without leaving the United States. But now with the publication of this memo, it would appear that the new USCIS default position will be to review adjustment of status applications through the prism of the “extraordinary nature” of adjustment of status and a totality of circumstances test in which negative and positive factors are considered. As noted in the memo, not even the absence of negative factors (e.g., status violation, an arrest, intent issues) assures the approval of an adjustment of status application.
What makes this trickier for those with a choice is the potential consular reaction to denied adjustment of status applications. After the denial of the adjustment of status application, presumably, the applicant will return home and apply for an immigrant visa. At that time, the consul will review the immigrant visa application through the filter of the denied adjustment of status application. Why was it denied? Was there a potential misrepresentation in the visa or entry process? Was there a violation of the 90 Day Rule? Was there a status violation in the US?
Now, there are a myriad of issues to consider before submitting an immigrant petition and an I-485 adjustment of status application: Visa Bulletin and priority dates; the potential role of the I-824 form; the soon-to-be-implemented rule for students and exchange visitors abolishing duration of status (D/S); nonimmigrant intent vs. dual intent visas; visa validity periods; I-94 expiration dates; I-131 advance parole (travel) and I-765 employment authorization processing times; ability to maintain underlying status during the course of the adjustment of status process; whether to submit “positive factor” evidence, such as close family ties in the US, community involvement, religious organization membership, and volunteer work, at the time of the application; and the adjudication patterns of the local USCIS office that will process the I-485. For those with pending I-485s, consideration may be given to supplementing the I-485 application with “positive factor” evidence in light of this memo.
The stakes could not be higher. In general, there is no judicial review of denied adjustment of status applications or immigrant visa applications. And so there is no neutral arbiter – no backstop – to the whims and caprices of USCIS and consular officials. There is a Reconsideration Process for denied adjustment of status and immigrant visa applications, but that is handled by USCIS and the State Department.
In short, there is much to think about. Every case is different. Feel free to contact us to consult on your individual case.