U.S. Immigration Policy Faces Major Changes for Foreign Nationals
For many years, foreign nationals residing in the United States on temporary visas—such as skilled workers, students, and visitors—have had a clear process to apply for a green card without leaving the country. This mechanism, known as the Adjustment of Status (AOS), has been a fundamental aspect of U.S. immigration policy. However, as of May 22, 2026, this option may no longer be available for the majority of visa holders.
On that date, the U.S. Citizenship and Immigration Services (USCIS) announced significant restrictions on the criteria under which individuals can apply for an I-485 Adjustment of Status to become lawful permanent residents. The announcement is based on a new memo issued by the agency just one day earlier, which shifts the default pathway to consular processing for immigrant visas abroad.
New Legal Standards Introduced
In a departure from decades of established practices allowing individuals to adjust their status while physically present in the U.S., USCIS has indicated that this option will now be considered a matter of special discretion, applicable only in unique situations. Agency officials have been instructed to weigh the necessity of nonimmigrant visa holders leaving the U.S. against various equity and hardship considerations that pertain to adjusting status while remaining in the country.
Criteria for Consideration
While USCIS has not specified the precise criteria for the required “balancing test,” it is expected to encompass a range of factors. These may include:
- The type of visa held by the applicant (e.g., a short-term visitor versus a long-term worker)
- The applicant’s underlying nonimmigrant classification, particularly if it has “dual purpose” status (for instance, H-1B or L-1 visas)
- The duration of the applicant’s legal residence in the United States and their conduct during that time
- Compliance with previous immigration laws, including maintenance of lawful status
- The applicant’s moral character
- Employment status and its significance to the U.S. economy
- The impact on the applicant’s children
- Special health concerns or other humanitarian considerations
- The need to uphold the integrity of the nonimmigrant visa system
Guidance for Employers and Affected Individuals
As USCIS is expected to provide more comprehensive guidance in the upcoming weeks and months, the following insights are crucial for those who might be impacted by these changes:
- Pending AOS Applications: For individuals who filed Form I-485 before this directive and whose applications are pending, those on H-1B or L-1 dual intent visas are likely to see their cases approved. Others should prepare to substantiate their requests for favorable discretion.
- Promoting Security Measures with I-140 Applications: When filing I-140 immigration applications—particularly after obtaining a PERM labor certification—it may be wise to indicate that consular processing will be the preferred route.
- Consular Processing Oversight: Checking the consular processing option on an I-140 petition does not preclude an applicant from later filing an I-485, provided their priority date is secure. However, once the I-140 is approved, USCIS will send the file to the National Visa Center (NVC), necessitating annual follow-up to prevent case closure.
- I-824 Requests: If an approved I-140 is designated for adjustment and the applicant lacks confidence in a strong adjustment case, filing an I-824 with USCIS to transfer the case to the NVC for consular processing is advisable, although it may delay the green card process.
- Work Authorization for Spouses: H-4 spouses will receive EAD work authorization once their H-1B counterpart has an approved I-140. Nevertheless, timely renewal requests are essential due to changes in automatic extension policies.
- Potential Work Permit Delays: Spouses of TN or O-1 visa holders could face disadvantages if consular processing is chosen. Various visa holders, including B-1 visitors and many international students, may see their green card timelines adversely affected.
Complications and Legal Considerations
Individuals from countries where immigrant visa travel is restricted should prioritize adjusting their status and compile robust supporting documentation. A significant concern is the possibility of being stranded abroad for extended periods due to delays in processing, which can disrupt families and schooling for children. Furthermore, it raises issues about job continuity while waiting for an immigrant visa.
Litigation may also arise in response to these policy changes, with plaintiffs arguing that the abrupt shift violates their due process rights. USCIS maintains that adjustments of status have always been discretionary, leaving the ultimate impact of any legal actions on the new memo uncertain. This policy evolution represents a pivotal change in U.S. immigration practices, and the coming months will likely shed more light on its implications for visa holders.
