On May 21, 2026, the Trump administration has announced a sweeping shift to U.S. immigration policy, declaring that foreign nationals temporarily in the United States who want to obtain a green card through adjustment of status must leave the country and apply through a U.S. consulate abroad.
U.S. Citizenship and Immigration Services (USCIS) has issued an official policy memorandum reiterating that, under longstanding federal immigration law and court precedents, Adjustment of Status (AOS) under Section 245 of the Immigration and Nationality Act (INA) is an extraordinary form of relief and an act of administrative grace.
This policy fundamentally alters Adjustment of Status (AOS) under INA Section 245, a process that for over half a century allowed hundreds of thousands of legal visa holders, refugees, and spouses of U.S. citizens to complete their permanent residency process without leaving the country.
Moving forward, the policy emphasizes that foreign nationals seeking lawful permanent residence (Green Cards) must generally do so through consular processing via the Department of State (DOS) outside of the United States. This means that foreign nationals in the U.S. must now return to their home countries to apply for permanent residency via consular processing, ending a 50-year practice of adjusting status domestically.
USCIS officers are directed to strictly evaluate applications on a case-by-case basis, considering all relevant factors to determine if an applicant qualifies for an exception under “extraordinary circumstances.”
1. Who is Impacted by This Change?
Immigration attorneys warn that this policy applies broadly to nearly anyone seeking to obtain a green card from within the United States. Historically, roughly 600,000 people apply to adjust status domestically each year.
The groups facing immediate impact and scrutiny include:
- Family-Based Applicants: Foreign nationals married to U.S. citizens or sponsored by immediate U.S. relatives, including family-based green card and marriage-based green card.
- Nonimmigrant Visa Holders: Individuals currently in the U.S. on F-1 student visas, J-1, B-1/B-2 tourist visas, or temporary work permits.
- Employment-Based Visas: Professionals, including doctors, engineers, and researchers on TN, O-1, L-1 Visa (including L-1 for Canadians, L-1B specialized knowledge and L-1 New Office), E-1, E-2 (including E-2 Employees, E-2 for Australians, E-2 for Canadians, E-2 for UK Citizens. E-2 Visa Lawyer), E-3 and other visas.
- Humanitarian & Special Categories: Religious visa holders and individuals holding temporary humanitarian protections.
2. Adjudication Guidance for USCIS Officers
When evaluating a Form I-485, Application to Register Permanent Residence or Adjust Status, USCIS officers must analyze the totality of the circumstances to determine if the applicant warrants a favorable exercise of administrative discretion.
| Example of Positive Factors | Example of Negative Factors |
| Strong family ties within the United States | Violations of U.S. immigration laws |
| Long-term lawful residence in the U.S. | Violating conditions of nonimmigrant visa or parole status |
| Evidence of good moral character | History of immigration fraud or false testimony to government agencies including USCIS |
| Absence of any significant criminal record | Actions after admission as a nonimmigrant or parolee inconsistent with representations made to consular or DHS officers when applying for a visa, admission or parole |
| Extreme hardship to U.S. citizen or LPR relatives | Failure to depart the U.S. as expected |
Important Note on Dual Intent: Applying for an adjustment of status is not considered inconsistent with maintaining a valid nonimmigrant status that permits dual intent (for example, H-1B, L-1).
3. Decision and Written Notice Protocols
If a USCIS officer denies a Form I-485 based on an unfavorable exercise of administrative discretion, USCIS must issue a denial notice as follows:
- Written Notification: Officers must issue a formal, written denial notice.
- Detailed Analysis: The notice must explicitly provide an analysis, listing the specific positive and negative factors analyzed in the record.
- Justification: The text must clearly explain why the negative factors outweigh the applicant’s positive factors under the totality of the circumstances.
4. Key Risks: The Consular “Catch-22”
Immigration attorneys are actively analyzing the policy memorandum to determine how it intersects with existing travel bans and closed embassies.
Major Logistical Challenges:
- Indefinite Family Separation: Forcing a non-citizen spouse to leave the U.S. to process an immigrant visa at a consulate with backlogs exceeding a year will split families apart indefinitely.
- Closed Embassies: Applicants from conflict zones face severe danger. For example, the U.S. Embassy in Afghanistan has been entirely closed since August 2021, leaving local applicants with no clear path to safely apply.
- Travel Bans & Restrictions: Foreign nationals from countries facing active U.S. travel bans or visa processing pauses risk being barred from re-entering the United States entirely once they step outside its borders.
5. What Remains Unanswered?
Because the policy memorandum was issued abruptly, several details remain unclarified by USCIS:
- Effective Date: The agency has not specified the exact date this policy takes effect.
- Pending Applications: It is currently unclear if this travel requirement retroactively impacts the hundreds of thousands of Form I-485 applications already in the processing pipeline.
- Stay Requirements: USCIS has not stated whether applicants who go abroad must remain in their home country for the entire duration of the visa wait time, or if temporary return travel is permitted.
Why Partner with Malescu Law?
With the Trump administration’s sweeping restrictions on Adjustment of Status (Form I-485), navigating the path to a green card is no longer a matter of standard paperwork.
With the release of this new USCIS policy, the path to permanent residency has fundamentally changed. Adjudicators now hold immense discretionary authority to decide who can legally adjust status within the U.S. and who will be forced to depart and obtain their green card though consular proecssing. Building a compelling case that demonstrates extraordinary circumstances and positive factors requires a well-prepared legal strategy. Attempting to navigate these sudden shifts alone—or relying on outdated immigration advice—places your family’s unity, your professional career, and your legal status in the United States at immediate risk. Partner with experienced immigration lawyers to secure your future.
We specialize in providing the strategic advice necessary to protect your future in this new regulatory landscape.
We serve companies and individuals across all 50 states, the District of Columbia and Puerto Rico.
Contact us or schedule a consultation.
Malescu Law P.A. – Business & Immigration Lawyers
