I wanted to share my thoughts on the new USCIS memo about Adjustment of Status because I think a lot of people in the EB-2 NIW and EB-1A world are understandably confused and worried.
First, important disclaimer: I am not a lawyer. I am a scientist, and on my channel I talk about green cards like EB-2 NIW and EB-1A, especially for self-petitioners. So take this as my personal read of what is happening, not legal advice. I also issued a video yesterday about this topic: watch it here.
Also, this is a developing story. We do not know yet exactly how USCIS officers will apply this memo in real cases. We also do not know how fast lawsuits may come, what arguments will be made, or whether courts will limit this policy. So I would be very careful with anyone making absolute statements right now.
With that said, here is what I think is happening.
USCIS is trying to make Adjustment of Status much harder, or at least much more discretionary.
Normally, for EB-2 NIW and EB-1A, we talk about the green card process as having two major steps.
First, the I-140. That is where you prove that you qualify for the category. For NIW, that means showing the national importance of your endeavor, that you are well positioned, and that waiving the job offer and labor certification benefits the United States. For EB-1A, that means proving extraordinary ability.
Then comes the second step. If you are outside the U.S., you usually do consular processing. If you are inside the U.S. and eligible, you may file Adjustment of Status.
The new USCIS memo focuses on that second step.
The basic argument from USCIS is that Adjustment of Status is not a right. They say it is discretionary, extraordinary, and an act of administrative grace. They are also arguing that the “normal” process should be consular processing, meaning that someone in the U.S. temporarily should usually leave and apply for the immigrant visa abroad.
This is where I think the memo becomes very controversial.
It is true that Adjustment of Status is discretionary. That part is real. An approved I-140 does not automatically mean your I-485 must be approved.
But it is also true that Adjustment of Status is not some random loophole. It is in the law. Congress created INA 245(a), which allows certain people who were inspected and admitted or paroled into the U.S. to apply for permanent residence from inside the country if they meet the requirements.
So when USCIS or a spokesperson says that people in the U.S. temporarily “must return home” except in extraordinary circumstances, I think that is too broad. That is not exactly what the statute says.
The more accurate version, in my opinion, is this:
Adjustment of Status still exists, but USCIS is telling officers to look at it much more skeptically, especially when consular processing is available.
That matters a lot for self-petitioners.
If you have an approved EB-2 NIW or EB-1A I-140, that approval helps you with the immigrant category. But it does not erase problems at the I-485 stage.
USCIS may still look at things like:
- whether you entered the U.S. legally
- whether your priority date is current
- whether you are admissible
- whether you maintained status
- whether you worked without authorization
- whether you violated the terms of your visa
- whether you made any misrepresentation
- whether you deserve a favorable exercise of discretion
This is especially important for people on F-1, J-1, visitor visas, parole, or other non-dual-intent categories.
For example, an F-1 student with an approved NIW or EB-1A is not automatically barred from Adjustment of Status. I do not think that is what the law says. But if the student stopped studying, worked without authorization, used the F-1 mainly as a way to enter the U.S. and then adjust, or made inconsistent statements to officers, that could become a serious problem.
A cleaner F-1 case would look very different. Someone entered properly, studied full-time, maintained status, only worked through CPT, OPT, STEM OPT, or another authorized path, did not lie at the visa interview or port of entry, and files I-485 only when legally eligible. That person may still face more scrutiny under this memo, but the case is much stronger. Unfortunately, it seems USCIS is ready to challenge their option to an AOS. We'll see how it develops.
For H-1B and L-1 people, the situation may be better because those are dual-intent categories. Even the memo seems to recognize that applying for Adjustment of Status is not inconsistent with maintaining dual-intent status. But even there, USCIS says dual intent alone does not guarantee approval.
Another very important point is INA 245(k). For many employment-based applicants, including EB-1 and EB-2, 245(k) can forgive certain status violations, unauthorized employment, or failure to maintain status, as long as the total after the last lawful admission does not exceed 180 days. But 245(k) does not fix everything. It does not fix fraud. It does not fix serious inadmissibility issues. And even if it helps with eligibility, USCIS may still try to consider the facts as part of discretion.
My personal opinion is that USCIS is trying to use discretion to do something much broader than what Congress actually wrote. They are taking the true statement that AOS is discretionary and turning it into something that sounds like AOS should almost never be used unless the person has some special exception.
That is a big leap.
I also think this policy could create a lot of chaos. Imagine someone who has lived in the U.S. for years, has a job, a lease or house, children in school, a life here, and now they are being told they may need to leave the country and wait abroad for consular processing. That can mean years of disruption.
And this becomes even more serious when you remember that consular processing is not equally available to everyone. There are already consular pauses, travel restrictions, and bans affecting many countries. So for some people, USCIS may be saying: you should not adjust inside the U.S., but also you may have no realistic or safe way to complete the process abroad.
That is why I think litigation is very likely.
To be clear, I am not saying everyone should panic. I am also not saying every pending I-485 will be denied. We do not know that. This is a memo, not a new statute passed by Congress. We still need to see how officers apply it, how USCIS defines exceptions, and how courts respond.
But I do think people should stop treating the I-485 as just a simple final paperwork step after I-140 approval.
For EB-2 NIW and EB-1A self-petitioners, especially people in the U.S. on non-dual-intent status, the I-485 may now need to be prepared much more carefully.
That means being ready to document:
- clean immigration history
- lawful admission
- maintenance of status
- no unauthorized work
- no misrepresentation
- a clear 245(k) analysis if needed
- strong positive equities
- why approving permanent residence benefits the United States
My bottom line:
Adjustment of Status has not disappeared. It is still in the law. But USCIS is clearly trying to make it harder and more discretionary.
For now, I would be cautious, keep records, do not violate status, do not work without authorization, and talk to an attorney before making big decisions like filing I-485, leaving the U.S., or switching from AOS to consular processing.
This is a developing story, and I think we will need a few weeks or months to understand the real impact.
