Employment & Labor Insider

Last Thursday, the U.S. Citizenship and Immigration Services issued a Policy Memorandum 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.”

Adjustment of status, or “AOS,” allows applicants to obtain permanent residence from within the United States rather than through the ordinary immigrant visa process abroad.

As its title indicates, the recent memorandum reminds officers that adjustment of status under Section 245 of the Immigration and Nationality Act is discretionary, and an “extraordinary” form of relief. It emphasizes that AOS is “not designed to supersede the regular consular processing of immigrant visas.”

The memorandum signals that the USCIS intends to place greater emphasis on discretionary review and individualized analysis during adjudications.

For employers and foreign nationals with pending or future green card filings, this guidance may affect the manner in which adjustment cases are documented, prepared, and strategically evaluated.

Practical implications of the memorandum

An AOS application (Form I-485) has always involved the exercise of discretion. In other words, meeting the basic eligibility requirements has never meant guaranteed approval.

However, in the past many employment-based adjustment cases have been viewed as relatively routine once the applicants established eligibility and cleared admissibility requirements. Last week’s memorandum signals that the USCIS may place greater emphasis on the overall facts of the case and the applicant’s immigration history when deciding whether to approve adjustment applications.

The memorandum states that officers should continue evaluating AOS applications using discretionary review and “the totality of the circumstances” rather than treating approval as automatic once statutory eligibility is established.

Family-based adjustment cases involving overstays, parole histories, or other factors may also be subject to greater scrutiny than before.

How discretion may be applied

The memorandum directs officers to evaluate the totality of the circumstances and weigh both positive and negative discretionary factors. Essentially, cases will be won or lost on the weight of the full record, rather than on whether a box is checked.

These factors may weigh against AOS approval:

• Prior status violations. This includes overstays, unauthorized employment, or breach of visa conditions.
• Failure to depart after completion of the admission or parole purpose. This could be a particular issue if immigrant visa processing abroad was available and the individual’s conduct was inconsistent with the original basis for admission or parole.
• Fraud or misrepresentation. This includes any prior fraud, misrepresentation, or false testimony in dealings with any government agency.
• Requests that conflict with applicable laws. This would include any admission or parole request that may have conflicted with laws, regulations, or policies applicable at the time of entry or parole.

On the other hand, the following may weigh in favor of AOS approval, even under a more demanding standard:

• Compliance with nonimmigrant status throughout the U.S. stay. The compliance should be sustained (rather than short-term), and adequately documented.
• Strong U.S. family ties, particularly to U.S. citizens or lawful permanent residents.
• Demonstrated hardship to qualifying relatives if the applicant is required to depart.
• Consistent tax filing history and evidence of good moral character.

Important point for H-1B and L-1 employees

The memorandum expressly acknowledges that filing for AOS is not inconsistent with dual-intent classifications such as H-1B and L-1. In other words, maintaining dual-intent status remains permissible.

However, maintaining lawful dual-intent status is not sufficient in itself to guarantee a favorable discretionary outcome. This means the following:

• H-1B and L-1 employees remain eligible to file AOS applications.
• Lawful status remains important.
• Additional considerations may be taken into account at USCIS discretion in determining whether the AOS application will be approved.

Employers should not expect routine approval just because cases were routinely approved in the past.

New written denial requirement

The memorandum directs USCIS officers that when a Form I-485 is denied as a matter of discretion, the denial notice must do the following:

• Identify the specific positive factors considered.
• Identify the adverse factors considered.
• Explain why negative considerations outweighed favorable ones.

This requirement is significant because it creates a clearer adjudicative record and may assist employers, individuals, and their attorneys in evaluating motions, reconsideration options, or future filings.

What the memorandum does not do

The memorandum does not do any of the following:

• Eliminate existing AOS.
• Require employment-based applicants to use consular processing.
• Change statutory eligibility under Section 245 of the INA.
• Prohibit H-1B or L-1 employees from filing AOS applications.
• Create new filing requirements.
• Announce filing cutoffs or transition dates.
• Restrict employment-based green card categories.

USCIS indicates that additional guidance may be issued for specific adjustment categories or applicant populations in the future.

Potential legal challenges and future developments

The memorandum relies on USCIS’s longstanding discretionary authority under Section 245(a) of the INA. However, the USCIS may face legal scrutiny if discretionary standards are applied in ways that exceed Congressional authority or expand adverse considerations beyond their traditional applications. Employers and foreign nationals should continue to monitor developments.

Recommended actions

For employers sponsoring foreign nationals:

No. 1: Review pending AOS applicants and identify those with the following issues:

• Prior status gaps.
• Unauthorized employment history.
• Complex entry histories.
• Prior immigration violations.
• Humanitarian parole or other discretionary entry categories.

No. 2: Continue filing AOS applications promptly where priority dates are current. The memorandum affects adjudication discretion, not filing eligibility.

No. 3: Evaluate whether additional evidence should accompany future I-485 packages, including the following:

• Status maintenance documentation
• Tax filings
• Immigration history records
• Family evidence
• Hardship documentation
• Equitable considerations

No. 4: Assess whether any cases may warrant discussion about consular processing strategy.

For foreign nationals:

Consider starting now to strengthen the discretionary record rather than relying solely on statutory eligibility. Supporting evidence may include the following:

• Immigration status history
• Tax compliance documentation
• Family relationships
• Community involvement
• Evidence of good moral character
• Hardship evidence where applicable

The traditional approach of filing minimal AOS packages may become less effective in a period of heightened discretionary review.

Much remains to be seen

The memorandum does not change the law applicable to adjustment of status applications, but it does signal a potential change in interpretation and adjudication. Both employers and foreign nationals should expect more discretionary analysis, more individualized review, and potentially increased scrutiny of immigration history and other considerations supporting permanent residence.

We are actively monitoring implementation guidance and any category-specific announcements from USCIS.