USCIS has issued a new policy memorandum that reframes adjustment of status the in-country green card process under INA §245, as “an extraordinary relief” and “a matter of discretion and administrative grace.”
The accompanying public announcement goes further, suggesting that nonimmigrants in the United States who want green cards generally must return abroad to consular process, except in “extraordinary circumstances.”
That language is striking. It is also, in our view, broader than the law actually allows. Below is a plain-English summary of what the memo does, where it overreaches, the political context behind it, what USCIS itself has now signaled about how it intends to apply the memo, and how clients should prepare adjustment filings going forward.
What the New USCIS Adjustment of Status Memo Says
USCIS’s argument runs in two steps.
First, it correctly notes that adjustment of status is discretionary. INA §245(a) uses permissive language, applicants carry the burden of showing they deserve a favorable exercise of discretion, and case law describes adjustment as “administrative grace.”
Second, and this is the new move, USCIS suggests that because nonimmigrants are generally expected to leave when their authorized stay ends, an applicant who remains in the United States to file Form I-485 may be acting against congressional expectations whenever consular processing is also available. Officers are told to treat adjustment, in that posture, as “extraordinary discretionary relief.”
The first step is uncontroversial. The second is where the memo runs into trouble.
What USCIS is Actually Targeting With the New Memo
To understand what is actually happening here, it helps to look at what the memo doesn’t change, and why.
The Trump administration has long objected to two specific statutory provisions: INA §245(c), which carves out exceptions to the bars on adjustment, and INA §245(k), which forgives certain employment-based applicants for limited periods of unauthorized employment, failure to maintain status, or other status violations. Together, these provisions allow large numbers of applicants, including many lawful nonimmigrants who experienced technical status problems, to adjust inside the United States rather than face consular processing and the three- and ten-year unlawful presence bars.
The administration cannot repeal §245(c) or §245(k). Only Congress can. What it can do is instruct adjudicators to weigh the choice to adjust as itself an adverse discretionary factor, and thereby achieve through discretion what it cannot achieve through legislation. The new memo’s “extraordinary circumstances” framing is the mechanism.
This is not a new idea inside the agency. To our knowledge, a similar approach was considered in 2004 and shelved at the time because agency lawyers concluded it could not be squared with the statute. Two decades later, the same theory has been revived in a different political environment.
That history matters. It supports the view that the memo is best understood as a policy lever rather than a faithful reading of INA §245, and it strengthens the legal arguments available to applicants whose denials rely on the memo’s broader framing.
Why the Memo Goes Further Than the Law Allows
INA §245(a) does not say adjustment is available only in extraordinary circumstances. It does not require an applicant to prove that consular processing is unavailable. It does not make consular availability a statutory bar. Congress identified the categories of applicants who cannot adjust in INA §245(c), and built specific exceptions and safe harbors around them. Where Congress wanted to limit adjustment, it did so expressly.
More importantly, Congress has repeatedly built adjustment into the immigration system as the ordinary path, not the exception:
- K-1 fiancé(e)s enter precisely so they can marry a U.S. citizen and adjust inside the country. INA §245(d) only makes sense if adjustment is the contemplated next step.
- Employment-based applicants are protected by INA §245(k), which forgives certain status violations and unauthorized employment, specifically so that EB applicants can adjust.
- EB-5 investors received express statutory authorization for concurrent I-485 filing in the 2022 Reform and Integrity Act (INA §245(n)), and eligibility for INA §245(k) protection.
- Immediate relatives, VAWA self-petitioners, SIJs, T and U visa holders, asylees, and refugees each have category-specific adjustment.
These are not extraordinary exceptions. They are the system Congress designed.
What USCIS Has Signaled About WHO Can Keep Filing for Adjustment
A USCIS spokesman has publicly framed the memo this way:
“After years of ignoring the intent of Congress in the adjustment of status application, USCIS is merely restating and reasserting that intent. While we work to operationalize this, people who present applications that provide an economic benefit or otherwise are in the national interest will likely be able to continue on their current path, while others may be asked to apply abroad depending on individualized circumstances.“
This statement matters for two reasons.
First, it confirms the legal exposure. USCIS is openly characterizing a statutory pathway as something the agency is now “operationalizing” against. That language is difficult to reconcile with the text of INA §245 and with the many adjustment categories Congress affirmatively created.
Second, it gives applicants a roadmap. The spokesman has effectively told the practicing bar that filings demonstrating “economic benefit” or “national interest” are the ones most likely to be approved without disruption. Whatever one thinks of that framing as a matter of law, it is now a stated agency preference, and prudent filings should respond to it directly.
How to Build a Strong I-485 Under the New Adjudication Standard
Given both the memo and the spokesman’s explicit signal, every I-485 should now be built as an affirmative case for discretion, not just a paperwork submission. The goal is to put the officer in a position where approval is the obvious result and denial would require ignoring a developed record.
Document Your Economic Contribution to the United States
Document the applicant’s actual and projected economic footprint in the United States. Depending on the case, this can include W-2 income, tax returns, and total federal, state, and local tax contributions; U.S. jobs created, sustained, or supervised by the applicant (especially relevant for EB-1C, L-1, EB-5, and EB-2 NIW applicants); business ownership, payroll records, vendor relationships, and U.S.-based capital investment; real property ownership, mortgages, and other long-term U.S. financial commitments; and industry, employer, or community letters quantifying the economic impact of the applicant’s continued presence.
Establish National Interest and Public Benefit Beyond Your Visa Category
Even outside the formal EB-2 NIW context, the spokesman’s reference to “national interest” invites applicants in any category to document contributions that serve U.S. priorities. This includes work in healthcare, STEM, critical infrastructure, defense-adjacent industries, advanced manufacturing, or other fields recognized as national priorities; research, patents, publications, scholarly citations, or technical contributions; service to underserved communities, rural areas, or shortage occupations; and roles supporting U.S. competitiveness, supply-chain resilience, or workforce development.
Show Continuous Lawful Status and Full Compliance
The strongest counter to any “extraordinary circumstances” framing is a clean record. Document lawful admission, continuously maintained status, authorized employment only, tax compliance, no fraud or misrepresentation, and consistency between every prior visa application, entry, and later conduct.
Include Family Ties and Community Equities
U.S. citizen and LPR family members, length of residence, community involvement, religious or civic engagement, and humanitarian equities all remain core favorable factors and should be documented rather than asserted.
Invoke Your Category-specific Statutory Protections
Where a provision applies, invoke it expressly in the filing. EB applicants should cite INA §245(k) where relevant, and where the memo’s framing is used to discount that forgiveness, preserving the legal objection on the record. EB-5 investors should rely on INA §245(n) and the 2022 RIA’s authorization of concurrent filing. K-1 spouses should make clear that adjustment is the statutorily contemplated step after marriage to the U.S. citizen petitioner. Dual-intent nonimmigrants should be reminded (because USCIS’s own memo concedes the point) that pursuing permanent residence is not inconsistent with H-1B or L-1 status.
The objective is not to accept USCIS’s premise that adjustment is “extraordinary.” It is to build a record so strong on equities, economic impact, and statutory category fit that the discretionary question answers itself.
Conclusion
Adjustment of status is discretionary. It is also statutory. Congress created it, limited it where it wanted to, and repeatedly preserved it, including through the §245(c) exceptions and §245(k) forgiveness provisions, for ordinary use across a wide range of categories. USCIS may consider adverse facts. It may not, consistent with the statute, treat the lawful use of adjustment as itself an adverse fact, and it may not use discretion as a back-door repeal of statutory provisions the agency cannot rewrite.
At the same time, USCIS has now publicly signaled which applicants it expects to continue on the adjustment path with the least friction: those whose filings demonstrate economic contribution and national-interest value. Filings should be built accordingly.
If you have a pending I-485, are preparing to file, or are weighing adjustment versus consular processing in light of the new memo, Ganey Law Group can review your case and develop a filing strategy that responds to the new adjudication environment without conceding ground the law does not require.
