New USCIS AOS Policy Memo May 2026: Can You Still Adjust Status without leaving the U.S.?

The May 22 news release states that, consistent with long-standing immigration law, applicants seeking permanent residency in the U.S. must generally pursue consular processing through the Department of State outside of the U.S. USCIS officers are directed to weigh all relevant factors on a case-by-case basis before exercising “extraordinary” discretion to approve AOS as a permissible pathway to permanent residency.

USCIS Director Joseph Edlow said the agency is “returning to the original intent of the law,” stating that, from now on, an individual in the United States temporarily on a nonimmigrant visa (i.e., B-2, F-1, H-1B, L-1, E-2, O-1, etc.) and seeking a green card must return to their home country to apply, except in extraordinary circumstances. Spokesman Zach Kahler added that nonimmigrants — including tourists, students, temporary workers, and investors — should not treat a temporary visit as “the first step in the green card process.”

The “normal” route to permanent residency in the U.S. is consular processing including interview at a U.S. consulate outside the U.S., not AOS within the U.S.

USCIS has reframed AOS as discretionary “extraordinary” relief, if one deviates from this “normal” route and files AOS instead of pursuing consular processing.  In other words, eligibility under INA § 245(a) simply allows you to consider applying for AOS, and no longer means a likelihood of approval. Every Form I-485 now requires an affirmative showing of “extraordinary” circumstances that warrant USCIS exercise of discretion.

The phrase “only in extraordinary circumstances” appears in the USCIS press release and in agency public statements, but nowhere does the phrase appear in the PM-602-0199 USCIS memo itself. Instead, the USCIS memo instructs that where adverse factors (i.e., DUIs, violation of status, exist, applicants must overcome them by showing “unusual or even outstanding equities” — the standard articulated in Matter of Blas, 15 I&N Dec. 626, 641 (BIA 1974).

The memo further notes, in Footnote 20, that maintaining lawful status in a dual-intent nonimmigrant category is not sufficient, on its own, to warrant a favorable exercise of discretion — meaning H-1B and L-1 status no longer functions as a discretionary shield.

For many foreign nationals, even those without adverse factors, consular processing at his/her home country may be the “safer” option, despite the possible delays.  While employment authorization (EADs) is not available when proceeding with consular processing, at least the chance of an AOS approval is not left to an individual USCIS officer’s subjective discretion. 

Certain country nationals, however, from India and the Philippines for instance, may face multi-month backlogs and frequent 221(g) administrative processing. In addition, the Department of State’s January 2026 suspension of immigrant visa processing for 75 countries, together with country-specific proclamation holds, has already added considerable delays. For these foreign nationals, attempting to demonstrate “extraordinary” circumstances and filing AOS may seem like a better, viable option.

We expect litigation. But until courts intervene, the memo is in effect and USCIS officers seems to be applying the new standard now in interviewing and adjudicating AOS applications, albeit inconsistently.  We hope additional USCIS clarifications to follow to guide adjudication.