USCIS Policy Update

New USCIS Adjustment of Status Memo: Why It May Be Vulnerable to Court Challenge

On May 21, 2026, U.S. Citizenship and Immigration Services issued a new 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.

If broadly adopted by adjudicators and not stopped by a court, it could affect people with pending Form I-485 adjustment of status applications, including some people applying for a marriage-based green card from inside the United States.

In my view, the memo raises serious legal concerns. Adjustment of status is discretionary, but Congress did not say that adjustment is available only in extraordinary circumstances. Nor did Congress say that a person who qualifies for adjustment through marriage to a U.S. citizen should be penalized merely because consular processing was theoretically available.

What did the new USCIS memo say?

The memo tells USCIS officers to treat adjustment of status as an extraordinary form of discretionary relief. It frames adjustment as an exception to the regular consular immigrant visa process and emphasizes that lawful permanent residence through adjustment is an act of administrative grace.

USCIS also says officers should consider whether an applicant failed to depart after admission or parole, whether the applicant violated status, whether the applicant acted inconsistently with the purpose of admission, and whether the applicant could have pursued an immigrant visa through a consulate abroad.

The memo appears to take conduct that Congress has already addressed, already provided for, in the adjustment statute and turn it into a broad negative discretionary factor.

Adjustment of status is discretionary, but that does not mean USCIS can rewrite the statute

There is no serious dispute that adjustment of status is discretionary in many cases. INA § 245(a) says the status of certain applicants may be adjusted if they were inspected and admitted or paroled, apply for adjustment, are eligible for an immigrant visa, are admissible, and have a visa immediately available.

But the word “may” does not give USCIS unlimited power. Discretion still has to be exercised within the statute Congress enacted. In my opinion, USCIS cannot use discretion to impose a new eligibility requirement that Congress did not place in the statute.

The memo repeatedly characterizes adjustment as “extraordinary,” but the INA does not say that a person must prove extraordinary circumstances before USCIS may approve an I-485. Nor are there BIA or federal court opinions that support such a position.

The memo is especially troubling for marriage green card cases involving U.S. citizens

Congress made a specific choice for immediate relatives of U.S. citizens. In many marriage-based adjustment cases, a spouse who was inspected and admitted can still adjust status even if the person overstayed, fell out of status, or worked without authorization.

That does not mean every case is safe. Fraud, misrepresentation, criminal issues, prior removal orders, false claims to citizenship, unlawful entry, and other facts can create serious problems. But a simple overstay after lawful admission is not the same thing as a statutory bar in a typical marriage-based case involving a U.S. citizen spouse.

The new memo does not clearly carve out this statutory protection. Instead, it speaks broadly about people who failed to depart after admission and later sought adjustment of status. That approach risks treating normal marriage-based adjustment cases as if they are attempts to avoid the consular process.

That is not how Congress wrote the immediate-relative adjustment framework.

Why the phrase “extraordinary relief” is misleading

Some older immigration cases describe adjustment of status as discretionary or extraordinary. USCIS relies heavily on that language. But that does not mean every adjustment applicant must show unusual or outstanding equities before the case can be approved.

The Board of Immigration Appeals has recognized that where adverse factors are present, an applicant may need stronger equities to overcome them. But that is different from saying adjustment is presumptively disfavored in every case.

In ordinary terms: USCIS can consider negative facts. USCIS cannot simply start from the premise that adjustment is suspect because the applicant could have left the United States and gone through consular processing.

That distinction matters because, if USCIS treats “you filed for adjustment instead of leaving” as a negative factor by itself, the memo may be vulnerable to challenge.

The memo may also raise Administrative Procedure Act problems

If USCIS merely reminded officers that adjustment is discretionary, the memo would be less vulnerable. But the memo appears to do more than that. It tells officers to consider the availability of consular processing, failure to depart, and the applicant’s use of adjustment instead of consular processing as part of the discretionary analysis.

That may create several potential legal issues:

• Contrary to law: USCIS may be adding a requirement Congress did not create.
• Arbitrary and capricious: USCIS may be relying on a distorted view of adjustment law while ignoring statutory exceptions and important precedent.
• Failure to use notice-and-comment rulemaking: If the memo functions as a binding rule that changes how I-485 applications are adjudicated, USCIS may not be able to impose it through a policy memo alone.
• Improper categorical treatment: If USCIS later uses the memo to target certain “discrete populations,” especially groups tied to nationality or country-specific parole programs, additional legal problems may arise.

The strongest challenge will likely depend on how USCIS applies the memo in actual cases.

What pending I-485 applicants should watch for

If you have a pending adjustment of status case, especially a marriage-based case, this memo may become important if USCIS begins using it in interviews, requests for evidence, notices of intent to deny, or denial decisions.

Potential warning signs include:

• USCIS asks why you did not leave the United States and consular process.
• USCIS treats an overstay as a negative discretionary factor even though you are married to a U.S. citizen and were inspected and admitted.
• USCIS says you failed to depart after your admission or parole ended and treats that as a reason to deny adjustment.
• USCIS issues an RFE or NOID asking for unusual or outstanding equities even though your case does not involve serious adverse facts.
• A denial states that adjustment is extraordinary relief and suggests that consular processing should have been used instead.

If you receive a notice like this, do not assume the agency’s framing is legally correct. The issue may be challengeable.

Can this memo be challenged in federal court?

Possibly. The most likely vehicle would be a federal lawsuit under the Administrative Procedure Act and the Declaratory Judgment Act. The lawsuit would not ask the court to approve a green card. Instead, it would ask the court to decide whether USCIS adopted or applied an unlawful policy memo.

That distinction matters. Courts are often limited in their ability to review the discretionary denial of an individual adjustment application. But a broader challenge to an unlawful agency policy can sometimes be framed differently, especially where the agency is applying a new legal standard to pending cases.

Not every case will be a good litigation vehicle. The strongest cases may involve pending I-485 applicants who can show that USCIS is actually applying the memo to them through an interview, RFE, NOID, delayed adjudication, or denial language.

Pending adjustment case affected by this memo?

If you have a pending adjustment of status case and USCIS is using this memo against you, I may be able to evaluate whether your case is a potential candidate for a federal court challenge.

This is especially important if your case involves:

• Marriage to a U.S. citizen after a lawful admission;
• A pending I-485 where USCIS is treating overstay or failure to depart as a discretionary problem;
• A USCIS interview where the officer focused on why you did not consular process;
• An RFE, NOID, or denial citing adjustment as “extraordinary” discretionary relief;
• A parole-based or nonimmigrant-based adjustment case that appears to be affected by the new memo.

I handle immigration litigation, including federal court challenges to unlawful agency action. A consultation can help determine whether your case is better handled through a USCIS response, motion, appeal strategy, or possible federal court litigation.

Schedule a Consultation
Or call (872) 222-9077

Related adjustment of status resources

If your case involves marriage to a U.S. citizen, overstay, unlawful presence, or a decision between adjustment and consular processing, these resources may help you understand the basic framework before your consultation:

• Marriage Green Card Guide
• Marriage Green Card After Overstay or Unlawful Presence
• B-2/ESTA Overstay and Marriage Green Card
• Unlawful Presence Bars
• Federal Immigration Litigation

FAQ: USCIS adjustment memo and pending I-485 cases

Disclaimer: This post is for general informational purposes only and is not legal advice. Reading this post does not create an attorney-client relationship. Immigration law is fact-specific, and outcomes depend on the applicant’s immigration history, admissibility issues, procedural posture, local USCIS practice, and current law.