Federal immigration officers have been directed to treat in-country green card applications as a discretionary exception rather than a standard option, a policy shift that is drawing concern from foreign students, temporary workers and others who had expected to apply for permanent residence without leaving the United States.
USCIS issued the directive May 22, accompanied by Policy Memorandum dated May 21, 2026. The memo instructs officers that adjustment of status — the process allowing eligible foreign nationals inside the United States to apply for a green card — should generally give way to consular processing, in which applicants apply for an immigrant visa through a U.S. embassy or consulate in their home country.
“From now on, an alien who is in the U.S. temporarily and wants a Green Card must return to their home country to apply, except in extraordinary circumstances,” USCIS spokesman Zach Kahler said.
The memo takes effect immediately as guidance for adjudication officers. How it will apply to pending cases remains unclear.
Who Is Affected
The policy covers nonimmigrants — foreign nationals admitted for a specific, temporary purpose — including F-1 students, H-1B and other temporary workers, and B-1/B-2 tourists. Those admitted under humanitarian parole programs are also included.
The memo carves out limited exceptions. Immediate relatives of U.S. citizens, Violence Against Women Act self-petitioners and certain special immigrant categories retain in-country pathways. H-1B workers and others in dual-intent nonimmigrant categories are not automatically barred, but the memo is clear that holding such status “is not sufficient, on its own, to warrant a favorable exercise of discretion.”
Students
F-1 students who plan to move from Optional Practical Training into employer sponsorship and eventually a green card face new uncertainty. The memo does not target student visas specifically, but its central premise — that a temporary admission should not serve as the opening step toward permanent residence — could draw greater scrutiny to that common pathway.
The policy also carries a specific legal risk for students or other applicants who have accrued unlawful presence. Under federal immigration law, leaving the country after more than 180 days but less than one year of unlawful presence can trigger a three-year bar on reentry. Leaving after more than one year can trigger a 10-year bar. For anyone in that situation, departing to pursue a consular application abroad could close the door on returning for years.
Temporary Workers
H-1B workers already in employment-based green card backlogs now face a harder calculation: file for in-country adjustment or pursue a consular application from abroad.
The difference in work authorization is a practical concern. Adjustment of status applicants can receive interim Employment Authorization Documents while their case is pending, allowing them to keep working. Consular processing does not offer that protection. Workers who leave the United States under the new framework may face a gap in their authorization — a problem that falls on both the employee and any employer who has sponsored them.
Mixed-Status Families
For families in which one spouse holds U.S. citizenship and the other entered in temporary status, consular processing could mean an extended period apart while the foreign-national spouse completes an overseas application.
The memo recognizes immediate relatives of U.S. citizens as a limited exception to the general policy. But that exception does not remove them from discretionary review — officers are still directed to weigh relevant factors before approving an in-country application.
Parolees
The memo addresses parolees directly, stating that parole was intended as a temporary measure and that parolees seeking in-country adjustment are generally expected to depart rather than remain.
USCIS acknowledged that humanitarian and other positive factors may still be considered in individual cases. The memo does not guarantee approval on those grounds alone.
What the Policy Says
USCIS framed the directive as a restatement of settled legal principles, not a new restriction.
The agency cited the Board of Immigration Appeals’ 1974 ruling in Matter of Blas, which described adjustment of status as an “extraordinary” form of relief “not designed to supersede the regular consular visa-issuing process.” The memo also references Patel v. Garland, a 2022 Supreme Court decision that described certain immigration relief as a matter of government discretion.
Under INA Section 245(a), adjustment of status has always been discretionary — the Secretary of Homeland Security “may” grant it. The memo now directs officers to treat that authority as the exception whenever consular processing is an available alternative.
When officers deny an application on discretionary grounds, they must issue a written decision explaining which factors they considered and why negative factors prevailed. The memo states that “the absence of adverse factors, by itself, does not demonstrate such unusual or outstanding equities” — meaning a clean immigration record may not be enough on its own.
Adverse factors officers are directed to consider include violations of immigration law or status conditions, prior fraud or false statements to a government agency, conduct inconsistent with the terms of a nonimmigrant admission, and failure to depart as required.
Why USCIS Made the Change
The agency offered two main justifications.
Redirecting most applicants to consular processing, USCIS said, will free its officers to focus on other caseloads — including U and T visas for crime victims and human trafficking survivors, naturalization applications, and other priorities. “Following the law allows the majority of these cases to be handled by the State Department at U.S. consular offices abroad,” Kahler said.
USCIS also argued the policy discourages visa overstays. “When aliens apply from their home country, it reduces the need to find and remove those who decide to slip into the shadows and remain in the U.S. illegally after being denied residency,” Kahler said.
What It Means in Practice
Several legal and procedural concerns follow from the shift.
The unlawful presence bar is the most immediate. Any applicant who has accumulated unlawful presence risks triggering a multi-year reentry ban simply by leaving to pursue a consular application.
The memo shifts more green card adjudication to U.S. consular posts abroad but says nothing about wait times or appointment availability at those posts, which vary considerably by country.
The document is written as officer guidance, not as a final rule subject to public notice-and-comment rulemaking under the Administrative Procedure Act — a distinction that could matter if the policy faces a legal challenge.
What Comes Next
USCIS said it will continue reviewing specific adjustment of status pathways and may issue further guidance for particular immigrant categories.
The memo states it is “intended solely for the guidance of USCIS personnel in the performance of their official duties” and “may not be relied upon to create any right or benefit, substantive or procedural, enforceable under law.”
The policy leaves many immigrants already living in the United States uncertain about whether they can complete the green card process without first leaving the country.
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