By Cyrus D. Mehta and Kaitlyn Field*
On Might 22, 2026, USCIS promulgated a coverage memorandum entitled “Adjustment of Standing is a Matter of Discretion and Administrative Grace, and an Extraordinary Reduction that Permits Candidates to Dispense with the Bizarre Consular Visa Course of”. The coverage memorandum states that adjustment of standing is a “matter of discretion and administrative grace not designed to supersede the common consular processing of immigrant visa”. The coverage memorandum suggests that almost all noncitizens ought to depart the US and course of for immigrant visas at consulates overseas, framing this because the intent of Congress when the Immigration and Nationality Act was enacted. USCIS officers are directed to think about that “adjustment of standing is a rare discretionary aid to the common immigrant visa course of and is an act of administrative grace”.
This new steering seems to use to most adjustment of standing candidates, together with employment-based and family-based candidates, these making use of for adjustment of standing primarily based on self-petitions (resembling EB-1), and dependent candidates. The memorandum particularly mentions that noncitizens who enter the U.S. on nonimmigrant visas or pursuant to parole are admitted just for a brief interval, and implies that they need to ordinarily not be permitted to regulate standing within the U.S., stating: “Congress, in establishing the nonimmigrant admission and parole processes, made it clear that aliens are anticipated to depart the US when the aim of their admission or parole has been achieved. Usually, when a nonimmigrant or parolee fails to depart as required and as a substitute seeks adjustment of standing, it contravenes these Congressional expectations…” The memorandum states no efficient date, and doesn’t make clear whether or not the steering shall be utilized to the adjudication of adjustment of standing petitions which have already been filed and are pending with USCIS.
Thie normal set forth on this coverage memorandum is just not solely an abrupt upheaval of established USCIS coverage, however can be in contravention of the legislation. INA §245(a), codified at 8 U.S.C. §1255(a), states solely that “Any alien who has been lawfully admitted for non permanent resident standing…such standing not having been terminated, could apply for adjustment of standing…” Though adjustment of standing is a discretionary profit pursuant to INA §245(a), it has by no means been interpreted as an “extraordinary” type of aid. The characterization of adjustment of standing as “extraordinary aid” is just not current wherever within the INA, and would absolutely have been elucidated by Congress if this was, in reality, its intent. USCIS’ interpretation of the phrase “could” in INA §245(a) to imply “extraordinary” is just not solely illogical, however opposite to the that means of the statute and to longstanding USCIS coverage.
The memorandum cites Matter of Blas, 15 I&N Dec. 626, 628 (BIA 1974) as assist for the concept that adjustment of standing is usually “granted solely as ‘a matter of discretion and administrative grace’”. Nevertheless, the memorandum, undoubtedly intentionally, omitted reference to BIA precedents resembling Matter of Cavasos, 17 I&N Dec. 215 (B.I.A. 1980) and Matter of Ibrahim, 18 I&N Dec. 55 (B.I.A. 1981), which held that adjustment of standing ought to typically be granted as a matter of discretion when the applicant was adjusting by means of an instantaneous relative.
The USCIS coverage memorandum doesn’t state that noncitizens are precluded from making use of for adjustment of standing, and lots of should still be capable to apply by offering proof of “extraordinary circumstances” that may stop them from consular processing. Nonetheless, the coverage shall be disastrous for individuals who are usually not permitted to regulate standing inside the US, and are unable to acquire an immigrant visa at a consulate, as a result of, for instance, of the Trump administration’s pause on the issuance of immigrant visas for residents of 75 international locations. Candidates for adjustment of standing are approved to stay within the U.S. whereas the appliance stays pending and might apply for work authorization and advance parole, that are essential advantages for noncitizens from backlogged international locations, resembling India and China.
The coverage memorandum was issued with out warning and has already gone into impact with a whole bunch of hundreds of adjustment of standing purposes pending with USCIS.
It’s anticipated that this coverage will swiftly be challenged by means of litigation. In 2024, in Loper Vibrant Enterprises v. Raimondo, the Supreme Courtroom abolished the long-standing Chevron doctrine, which required to defer to the federal government company’s interpretation of an ambiguous statute. The Supreme Courtroom’s holding in Loper Vibrant could current a chance for a courtroom to strike down the brand new USCIS coverage, which is each opposite to the statutory framework and was additionally promulgated with out discover and remark rulemaking.
*Kaitlyn Field is a Accomplice at Cyrus D. Mehta & Companions PLLC.
