On May 22, 2026, U.S. Citizenship and Immigration Services (USCIS) released policy memorandum PM-602-0199, “Adjustment of Status is a Matter of Discretion and Administrative Grace, and an Extraordinary Relief that Permits Applicants to Dispense with the Ordinary Consular Visa Process.” This memorandum has caused panic because it seemingly restricts the ability of green card applicants to become permanent residents without leaving the United States (i.e. adjusting status) as opposed to traveling to the consulate in their home country. As a cross-border U.S. and Canadian immigration lawyer who regularly assist Canadians with adjustment of status and immigrant visa consular processing, I will discuss the recent memorandum, updates since its release, and its potential impact on Canadians.
What is the purpose of this memorandum?
The purpose of the memorandum is to provide clarification regarding section 245(a) of the INA. Essentially, this memorandum was written to remind officers that adjustment of status is “a matter of discretion and administrative grace and not designed to supersede the regular consular processing of immigrant visas.” In other words, USCIS and professionals in the immigration field alike have taken adjustment of status as a given and assumed that permanent resident applicants are free to decide between adjustment of status or consular processing as they deem fit based on their circumstances. However, this memo challenges this common understanding by asserting that consular processing is the default and that adjustment of status should only be done on a discretionary basis and by administrative grace. In short, USCIS’s new position is that adjustment of status is a favor, not a right. Moreover, this memorandum seems to be motivated to prevent violations of immigration law.
What is adjustment of status and consular processing?
Adjustment of status is the term used to refer to changing your status to permanent resident (i.e. green card holder) without leaving the United States. This contrasts with consular processing, where you attend a consular appointment in your country of nationality or permanent residence. In short, adjustment of status is completed inside the United States while consular processing is completed abroad.
What does the memorandum state?
The memorandum states that prior court opinion, including Supreme Court opinion, has established that even if a foreign national meets the criteria to adjust status to permanent resident, it will not always be granted because adjustment of status is “a matter of discretion,” “administrative grace,” “extraordinary,” and “dispensing with ordinary immigration procedures.” Further, the memorandum states that “such authority [to grant adjustment of status] must be exercised with the utmost caution and with a view towards national interests.” USCIS notes that Congress has placed greater limits on the ability of foreign nationals to adjust status that do not apply to foreign nationals seeking green cards from abroad, and mentions that the Immigration and Nationality Act (INA) limits certain foreign nationals from adjusting status even after they have been inspected and admitted or paroled into the United States. Accordingly, because USCIS’s position is that adjustment of status is discretionary, it should be decided on a case-by-case basis.
What does the memorandum say about nonimmigrants?
Nonimmigrants are individuals who are issued visas to the United States for temporary purposes, such as work, studying, or visiting, and are expected to leave at the end of their authorized period of stay. This contrasts with immigrant visas, which allow a foreign national to become a U.S. permanent resident. The memorandum states that foreign nationals may enter the United States as nonimmigrants until their status expires or they fail to maintain their nonimmigrant status, at which point they will have to leave the United States. It is reiterated that nonimmigrants are supposed to leave when the reason for their entry or parole has been completed.
What does the memorandum say about dual intent visas?
Dual intent visas are visas where someone may have an immigrant intent, meaning they can express the intent to permanently immigrate to the United States. L-1A, L-1B, and H-1B visas are dual intent. Other visas, such as E-2 or TN visas, are nonimmigrant intent, meaning that a beneficiary of these visas must not have the intent to immigrate to the United States. USCIS acknowledges that these dual intent visas, and other immigrant categories where adjustment of status is the only way to become a permanent resident, are exceptions to the default expectation of consular processing.
What criteria will USCIS use to decide whether adjustment of status is warranted?
The memorandum states that officers “are to consider all relevant factors and information in the totality of the circumstances in exercising that discretion.” Factors that USCIS will look at are:
- Violation of immigration law or the conditions of any immigration status held;
- Previous instances of fraud or false testimony in dealings with USCIS or any government agency;
- Whether a foreign national’s application for admission or parole violated the laws, regulations, and policies in place at the time;
- Any conduct after admission inconsistent with the purpose of your status; this will be evaluated by statements and representations made to officers when applying for a visa or entry into the United States.
The memorandum specifically notes that “failure to comply with the condition of [your] nonimmigrant admission or parole and…failure to depart as expected are highly relevant to this analysis. This is particularly true when the failure is connected to the alien’s intention to reside permanently in the United States and the [foreign national] could have achieved that goal through the normal immigrant visa process.”
What are positive factors that USCIS will consider when determining whether adjustment of status is warranted?
Officers are instructed to consider:
- Family ties;
- Immigration status and history;
- The applicant’s moral character; and
- Any other relevant factor that bears on determining whether the alien warrants a favorable exercise of discretion.
Updates Since the Release of the Memorandum
Since the release of the memorandum and after the uproar, the Department of Homeland Security has taken a softer tone, emphasizing that USCIS officers always had discretion and that most immigrants will not need to leave the United States to consular process. Anecdotally, for Form I-485, Application to Register Permanent Residence or Adjust Status, Requests for Evidence (the document USCIS sends for pending immigration petitions requesting more information and evidence before making a decision) seem to have been sent out where applicants must demonstrate that they are eligible to adjust status. Applicants can show this through various means, such as U.S. family ties, education, English proficiency, employment history, paying taxes, hardship to the applicant or applicant’s family if adjustment of status is not permitted, proof of rehabilitation in the case of a criminal record, business and property ties, as well as any other helpful information that would lead a USCIS officer to make a positive determination regarding adjustment of status.
Implications for Canadians
Below I will discuss the implications of the new memorandum for Canadians in the United States in different immigrant statuses.
B-1 Business Visitors and B-2 Tourists
Canadians may enter the United States visa-free under B-1 status, which is for business visitors, or B-2 status, which is for tourists. Canadians are allowed entry for a reasonable time to complete their business or leisure activity, typically for a maximum of six months. This status may also be extended for up to another six months. A situation relevant to this memorandum is that, historically, after entering B-1 or B-2 status and overstaying their authorized period of stay, a Canadian may meet and marry an American citizen, which would allow them to file an adjustment of status petition that would not only forgive the overstay but any unauthorized work as well. Some Canadians are already married to U.S. citizens, and they enter the U.S. under B-2 status and, after waiting some months to avoid intent issues, file their marriage-based green card petition.
Under this new guidance, Canadian business visitors or tourists may have difficulty adjusting status due to not complying with their nonimmigrant status, failing to depart, and attempting to gain permanent residency. This is because by entering as a tourist, you are informing the CBP officer that you are entering for tourism. However, if you do not leave for months or years and marry an American, this would mean that you did not comply with your nonimmigrant status, and it raises the suspicion that you wanted to get married to gain permanent residency. Canadians married to U.S. citizens may face more scrutiny since USCIS may question why the Canadian citizen did not consular process. It is not known what the results will be until the policy is applied.
F-1 Students
Canadians may also be admitted into the United States as university and college students under an F-1 visa. They are typically allowed to stay until they complete their studies, which is noted as “D/S,” meaning “duration of status.” With duration of status, an F-1 student is considered out of status when their academic program ends and they do not leave, but they do not accrue unlawful presence (which would subject them to a three or ten year ban if they accrue 180 and 365 days of unlawful presence respectively) unless they apply for an immigration benefit that is denied or are ordered removed by an immigration judge. Because of duration of status, some F-1 students have remained in the United States after the end of their academic program (sometimes years after), married an American citizen, and adjusted their status to U.S. permanent resident. This pathway may become more difficult under the new guidance since the Canadian F-1 student did not comply with the condition of their nonimmigrant admission and did not depart at the end of their studies.
Nonimmigrant Employment-Based Categories (TN, E-1, E-2, and O-1 Visa Holders)
Given the language of the memorandum and recent updates, nonimmigrant employment-based categories will likely have to explain why they merit adjustment of status as opposed to consular processing. Therefore, it does not seem that a Canadian must consular process absent an extraordinary reason that warrants adjustment of status; it seems that a Canadian may adjust status but must explain and provide evidence for why a USCIS officer should allow them to do so instead of consular processing. However, this interpretation is based on speculation from the memorandum and recent updates. We will have to wait and see how this guidance is applied.
L-1A, L-1B, and H-1B Visa Holders
For dual intent categories such as L-1A, L-1B, and H-1B visas, this memorandum will have minimal impact unless, for some specific reason, the applicant wanted to pursue consular processing. The memorandum specifically states that “USCIS reminds its officers that applying for adjustment of status is not inconsistent with simultaneously maintaining nonimmigrant status in a category with dual intent” and that “USCIS acknowledges exceptions [to the standard path of consular processing] including nonimmigrant categories with dual intent and immigrant categories where only adjustment of status provides a pathway to permanent resident status.” Therefore, this memorandum has virtually no direct impact on dual intent visa holders.
Canadians Who Are Out-of-Status But Are Married or Plan to Marry Americans
This change in policy may have a negative impact on Canadians who are out of status and have married U.S. citizens. As discussed above, a Canadian who entered the United States lawfully could overstay, and if they married a U.S. citizen, this unauthorized stay would be forgiven. Unfortunately, the new guidance has made clear that overstaying and actions contrary to your stated purpose of entry are adverse factors that would prevent adjustment of status. Moreover, if a person has overstayed for more than 180 days, they are subject to a three-year bar from re-entering the United States, or a ten-year bar from re-entering the United States if the overstay is more than 365 days.
Potential Consequence of this Policy
Given the Trump Administration’s softer tone, we will have to wait and see how this change plays out. A potential consequence of this policy is that, for some Canadians who wish to obtain a green card, they will have to go to the U.S. Consulate in Montreal, since that is currently the only consulate in Canada that handles green card adjudications. This may lead to backlogs, delays, and inconvenience due to missing work, being away from family, and waiting a few weeks in Canada to receive their immigrant visa. There is also the risk of administrative processing, which is when a visa petition is not denied but needs to be reviewed more thoroughly, which can take months and is also a major inconvenience.
In general, applicants have fewer rights with consular processing. With consular processing, there is the doctrine of consular non-reviewability. What this means is that a consular officer’s decision is final — there are no appeal rights. If you are denied an immigration benefit, you have to apply again with a new petition. Further, with USCIS, they can take their time to review your petition and ask for more information with a Request for Evidence that is sent to you. Also, you may work with a lawyer to strengthen your case. With consular processing, decisions are faster, there is no opportunity to present more evidence, and officer discretion is the basis of decision-making. Hence, you have less control if the officer misapplies the law, does not understand the facts of your case, or is in a bad mood.
Contact a Windsor-Detroit Cross-Border Immigration Lawyer for Adjustment of Status Assistance
Due to this additional complexity, now is not the time to represent yourself with your immigration petition. Additional information and evidence that was not normally required when filing adjustment of status petitions in the past will now be required; this makes adjustment of status petitions more risky. Moreover, with this recent change, applicants cannot merely assume they can adjust status as a matter of right.
If you do not explain why you merit adjustment of status, your I-485 petition will be denied and you may have to consular process. Worse yet, if you have accumulated at least 180 days of unlawful presence, your I-485 is denied, and you have to consular process, you may be subject to a three or ten year ban. If this happens to you, you may need a hardship waiver, which can take months to prepare and years to process. Even in less extreme cases, if you must consular process, it may cost you weeks and thousands of dollars that could have been saved if you worked with a lawyer.
To avoid these risks, it is important to reach out to me. Please keep in mind that all of the above is general information and not legal advice. The only advice I can give you at this time is to schedule a consultation with me so I can properly guide you through this process.
Last Updated on June 3, 2026 by Ernest J. Edwards