By: Law Offices of Daniel Shanfield May 27, 2026

USCIS’s New Adjustment of Status Policy: Why Family-Based Cases Now Demand a Stronger, More Strategic Approach

A New Era of Discretion in Adjustment of Status

Recent announcements from U.S. Citizenship and Immigration Services (USCIS) have sent shockwaves through the immigration community. The agency declared it will grant adjustment of status (“AOS”) only in “extraordinary circumstances.” At first glance, this language suggests a dramatic rollback of family-based green card approvals.

But as experienced immigration practitioners, we must separate rhetoric from enforceable policy.

The May 21, 2026 policy memorandum (PM-602-0199) does not change the law. Instead, it reinforces a principle that has always existed:

Adjustment of status is a discretionary benefit—not an entitlement—and must be earned through a favorable exercise of discretion.

However, the way USCIS officers adjudicate adjustment of status cases is shifting. USCIS officers are now being directed—explicitly and systematically—to examine both negative and positive factors in every case and to articulate their reasoning in writing.

For applicants and attorneys alike, this signals one clear reality:

We can no longer approach adjustment of status cases as routine filings. Every case must now be built as a discretionary case.

What Has Changed in Practice: A More Exacting Standard

Even though the legal standard has not changed, the rigor of review has.

USCIS officers are now instructed to consider:

Immigration violations (overstays, entries without inspection, status violations)
Prior fraud or misrepresentation
Conduct inconsistent with visa purpose
Criminal history and law enforcement contacts
Moral character and rehabilitation
Family ties and humanitarian factors [USCIS Issu…ed to Know]

In our experience across USCIS field offices—including Northern California—these issues are already being raised more aggressively at interviews and in Requests for Evidence (RFEs).

The key shift is not theoretical. It is operational.

Officers are no longer assuming a favorable exercise of discretion in family-based cases. They are demanding proof.

The Legal Framework: Discretion Has Always Controlled

The Board of Immigration Appeals (BIA) has long held that immigration benefits require a balancing of equities.

The governing principles come from foundational cases, including:

Matter of Arai, 13 I&N Dec. 494 (BIA 1970) – Adjustment requires a showing of favorable discretion, with consideration of adverse factors.
Matter of Marin, 16 I&N Dec. 581 (BIA 1978) – Establishes the framework for balancing positive and negative equities in discretionary relief.
Matter of Patel, 17 I&N Dec. 597 (BIA 1980) – Confirms that applicants bear the burden of demonstrating they merit relief as a matter of discretion.
Matter of Edwards, 20 I&N Dec. 191 (BIA 1990) – Emphasizes rehabilitation and evidence of good moral character.

These cases have always governed AOS adjudications. What has changed is the intensity of enforcement.

USCIS is now operationalizing these doctrines into everyday adjudication.

What This Means for Family-Based Adjustment Cases

Family-based AOS—especially for spouses of U.S. citizens—remains one of the strongest pathways to permanent residence. But the days of minimal documentation are over.

1. You Must Build a Full Discretionary Record

Every case should now address:

Family hardship (separation, childcare, medical issues)
Community ties (church, volunteer work, education)
Economic contributions (employment, taxes, employer reliance)
National interest considerations, where applicable

Think in terms of the total picture of the applicant’s value and equities.

2. You Must Confront Negative Factors Head-On

Silence is no longer defensible.

If your case involves:

Overstay or unlawful presence (INA § 212(a)(9)(B))
Entry without inspection
Prior removal or immigration violations
Arrests, charges, or convictions

These issues must be:

Disclosed clearly
Contextualized factually
Addressed with remorse, rehabilitation, and evidence of reform

A failure to address negative factors proactively can be fatal under the current enforcement environment.

3. You Must Justify Adjustment—Not Assume It

The memo underscores a core principle:

Adjustment of status exists as an exception to the “normal” consular process.

That means applicants must be prepared to explain:

Why adjustment of status—rather than consular processing—is appropriate.

This is particularly critical in cases involving:

I-824 delays (which can trap families in procedural limbo)
Unlawful presence bars under INA §212(a)(9)(B)
Eligibility under INA §245(i)

A persuasive case must demonstrate that requiring departure would cause:

Severe hardship
Procedural inefficiency
Or results contrary to equitable administration

The Real-World Impact: Slower Cases, More RFEs, Higher Stakes

Practitioners are already observing:

Increased Requests for Evidence (RFEs)
More detailed Notices of Intent to Deny (NOIDs)
Longer adjudication timelines

Officers are now expected to document why they are granting adjustment as a matter of discretion, which will likely increase scrutiny and delay.

In other words:

The case is no longer decided solely by eligibility—it is decided by persuasion.

Strategic Response: Going the Extra Mile

In this environment, successful cases require:

A Structured Legal Narrative

Cover letters that apply BIA case law directly
Organized presentation of positive equities
Clear rebuttal of negative factors

Documentary Depth

Detailed declarations from applicant and family
Employer letters showing reliance and economic contribution
Evidence of taxes, stability, and long-term presence
Proof of rehabilitation where needed

Interview Preparedness

Anticipating discretionary questions
Addressing credibility issues in advance
Aligning testimony with documentary evidence

The Bottom Line: Urgent—but Not Hopeless

The headlines are designed to provoke fear. But the legal foundation remains intact.

USCIS cannot eliminate adjustment of status through a memo. Courts—including the Ninth Circuit—will continue to enforce statutory limits on agency discretion.

And importantly:

Strong cases—properly prepared—remain approvable.

But routine filings are no longer enough.