Adjustment of Status is a Matter of Discretion and “Administrative Grace”
Guberman//Appleby Immigration Update: May 2026
Welcome to the Guberman // Appleby Immigration Update. We hope you find the information provided relevant to your immigration needs. Our objective is to highlight recent updates in immigration that are of interest to our readers. If you have questions about how these changes impact you, we invite you to contact our US immigration lawyers for tailored guidance.
Today’s topic:
Adjustment of Status is a Matter of Discretion and “Administrative Grace”
On May 21, 2026, the US Citizenship and Immigration Services (USCIS) released a policy memorandum (PM-602-0199) claiming that adjustment of status (AOS) under section 245 of the Immigration and Nationality Act (INA) is a matter of discretion and administrative grace, placing a significant burden on anyone applying for a green card while in the US. Typically, there are two main application methods for permanent residence (a “green card”): adjustment of status, which is obtaining permanent residence while in the US, and consular processing, which is obtaining permanent residence after an interview at a US embassy or consulate abroad.
Under the new policy memo, people applying for permanent residence inside the US will face a new level of scrutiny as USCIS redefines its use of discretion in approving these applications. Obtaining permanent residence generally requires a favorable exercise of discretion by USCIS; in the past, USCIS exercised their discretion favorably when applicants met the eligibility criteria and had no significant adverse factors such as criminal convictions. Typically, overstaying a visa while pursuing permanent residence was not considered a major adverse factor, particularly in family-based cases.
Now, applicants for permanent residence who overstay the terms of their status will be tagged with the significant negative factor of “violation of immigration laws” that may be difficult to overcome.
Applicants who are maintaining lawful status such as a visitor, work, or other temporary status may also be affected. Currently, roughly half of permanent residence applications are processed inside the US, and half are processed through the consulates. Both are already slow processes. If the consular workload nearly doubles, applicants could face extremely long wait times and may face difficulty in maintaining non-immigrant status throughout the wait. This could force applicants to leave the US to await consular processing abroad and be separated from their US family or businesses in the process.
There are various considerations for those with pending AOS cases. Leaving the US while a green card application is pending is considered abandonment of the process for most applicants, unless they previously obtain permission. Additionally, people who were born in or are citizens of travel ban countries who were not impacted by the bar inside the US may be barred from returning to the US once they leave. Also, those who have overstayed their visa or status in the US may face multi-year bars on re-entry once they depart.
It remains to be seen how exactly this policy memo will be applied, and it will certainly be challenged in court.
Guberman//Appleby Immigration Lawyers will continue to monitor the situation carefully. If you have questions about how this affects your case or your future US immigration plans, please reach out for a consultation with one of our experienced US immigration lawyers. Please note: This blog post is for informational purposes only and does not constitute legal advice.
Have questions about a pending green card or adjustment of status application?
Speak with a U.S. immigration lawyer at Guberman // Appleby Immigration Lawyers. Our team can help you understand how recent USCIS policy changes may affect your options, timing, and next steps.
Contact Guberman // Appleby Immigration Lawyers
Frequently Asked Questions
What is adjustment of status?
Adjustment of status is the process of applying for permanent residence from inside the United States rather than completing the process through a US embassy or consulate abroad.
Can USCIS deny a green card application even if someone is eligible?
Yes. Even when an applicant appears to meet the basic eligibility requirements, USCIS may still review whether the application deserves a favorable exercise of discretion.
What does administrative grace mean in a green card application?
Administrative grace refers to the discretionary nature of certain immigration benefits, meaning approval is not automatic simply because an applicant meets the technical requirements.
Can someone leave the U.S. while an adjustment of status application is pending?
In many cases, leaving the United States while an adjustment of status application is pending may be treated as abandonment of the application unless the applicant has first received permission to travel.
Should applicants consider consular processing instead of adjustment of status?
Some applicants may need to review whether consular processing is a better option, but that decision depends on their immigration history, current status, family or business ties, and possible risks when leaving the United States.
