Publication
USCIS Reframes Adjustment of Status as Extraordinary Relief – What Employers Need to Know
On May 21, 2026, U.S. Citizenship and Immigration Services (USCIS) issued Policy Memorandum PM-602-0199, which changes how officers will evaluate adjustment of status (AOS) applications — the process by which foreign national employees apply for a Green Card while remaining in the United States. This alert summarizes what we know, what remains unclear, and what steps to consider taking on behalf of your employees.
What Changed
USCIS now considers AOS an “extraordinary” form of relief rather than a routine pathway to permanent residence. Under this policy, the default expectation is that Green Card applicants will process their applications at a U.S. consulate abroad rather than remain in the U.S. while their case is decided. Officers must evaluate whether each applicant’s circumstances justify an exception to that default.
The policy memo does not eliminate AOS. It does not change the statute, and the Form I-485 remains available.
What the memo does is instruct officers to exercise their existing discretionary authority more stringently. Until recently, officers routinely exercised it in favor of applicants who met all other statutory criteria. This policy memo elevates the discretionary inquiry from a routine step to the central question in every case.
The “Economic Benefit” Clarification
On May 22, 2026, in an accompanying press release, a USCIS spokesperson stated that applicants who “provide an economic benefit or otherwise are in the national interest” will “likely be able to continue on their current path.” Many practitioners believe this language is intended to cover employment-based cases. However, USCIS has not issued formal written guidance confirming this, and the statement does not appear in the memorandum itself.
The bottom line for employers: we do not yet know with certainty how this will be applied to your sponsored employees, but initial indications suggest employment-based cases may receive favorable treatment.
Who May Be Most Affected
Employees in H-1B and L-1 status (dual-intent categories) are expected to be less impacted, though the memo states that maintaining lawful dual-intent status alone is “not sufficient, on its own, to warrant a favorable exercise of discretion.” Put simply: H-1B and L-1 holders are not penalized for wanting a Green Card which is allowed under their visa type. But under this new policy, not having a mark against you is not the same as having a reason in your favor. Officers will still expect these applicants to show additional positive factors, such as economic contributions or strong compliance history, to justify processing their Green Card in the U.S. rather than abroad. Employees with any history of status violations, unauthorized employment, or extended gaps in status may face greater scrutiny.
Consider the Following Measures
Until USCIS provides formal guidance implementing this policy memorandum, you may want to consider taking the following measures:
- Continuing to file I-485 applications for eligible employees, particularly those in dual-intent categories with clean immigration histories.
- Strengthening applications by documenting each employee’s economic contributions, compliance history, and community ties.
- Evaluating consular processing as an alternative where it may be more reliable, depending on the employee’s country of origin and individual circumstances.
- Monitoring USCIS for further guidance and tracking anticipated litigation that may affect the memo’s implementation.
What Should Employers Do Now?
If you are planning new Green Card sponsorships, please consider reaching out to legal counsel who can advise on timing and strategy in light of this policy. We will issue updates as further clarity emerges from USCIS.
About Snell & Wilmer
Founded in 1938, Snell & Wilmer is a full-service business law firm with more than 500 attorneys practicing in 17 locations throughout the United States and in Mexico, including Phoenix and Tucson, Arizona; Los Angeles, Orange County, Palo Alto and San Diego, California; Denver, Colorado; Washington, D.C.; Boise, Idaho; Las Vegas and Reno-Tahoe, Nevada; Albuquerque, New Mexico; Portland, Oregon; Dallas, Texas; Salt Lake City, Utah; Seattle, Washington; and Los Cabos, Mexico. The firm represents clients ranging from large, publicly traded corporations to small businesses, individuals and entrepreneurs. For more information, visit swlaw.com.
