USCIS’s May 21, 2026 AOS Memo: A Firm Reminder, Not a Legal Earthquake
Author: Jian Joe Zhou (jzhou@hooyou.com)
The USCIS memo addressing the discretionary nature of adjustment of status (AOS), issued on May 21, 2026, has garnered considerable attention. However, it is important to recognize that this memo does not represent a seismic shift in immigration law. Rather, it serves as a policy reminder directing officers to apply longstanding legal principles with greater consistency. Historically, USCIS has exercised broad discretion in AOS adjudications. This memo calls for stricter adherence to existing standards, not a rewriting of them. Nevertheless, the memo contains some unusually strong language emphasizing the discretionary nature of AOS adjudications.
I. Tightening of Discretionary Practice
While discretion has always been part of the adjustment of status process, USCIS now intends to apply that discretion more rigorously. Historically, many applicants—including those who entered on temporary visas such as B-1/B-2 visas—were often granted AOS if otherwise eligible, without extensive scrutiny of their original intent.
Going forward, intent may receive closer examination. Temporary visa holders who apply for AOS shortly after entry could face heightened scrutiny. Even where no statutory bar exists, negative factors—such as prior immigration violations or criminal records—may weigh more heavily in the discretionary analysis. In short, individuals holding temporary visas or those with adverse immigration or criminal histories should expect stricter review.
II. H-1B and L-1 Remain Strong Adjustment Paths
The memo explicitly recognizes that dual-intent visa classifications, such as H-1B and L-1, are consistent with the purpose of adjustment of status. Unlike many temporary visa categories, these classifications do not require an intent to return home and therefore align naturally with the concept of pursuing permanent residence.
While maintaining H-1B or L-1 status does not guarantee AOS approval—since negative discretionary factors remain relevant—these visa categories generally place applicants in a more favorable position. H-1B and L-1 status, by their nature, are viewed more favorably in the AOS context. Accordingly, individuals planning to pursue permanent residence may benefit from maintaining or obtaining H or L status whenever possible.
III. Clarity in Balancing Positive and Negative Factors
The memo reiterates that officers must balance both favorable and unfavorable factors when exercising discretion.
Positive Factors:
Negative Factors:
The memo emphasizes that the totality of positive factors must outweigh any negative factors to warrant a favorable exercise of discretion.
IV. No New Law—A Policy Reminder
This memo is policy guidance, not a change in law or regulation. USCIS cannot override controlling statutes or precedents such as Matter of Marin. Rather, the memo serves as a reminder that officers should faithfully apply existing legal standards. The underlying legal framework remains unchanged; the focus is on more consistent application.
V. Conclusion: Consistency Is the Focus
If USCIS were to depart from established legal precedent, its decisions could be subject to judicial challenge. The purpose of the memo is not to alter the legal framework governing adjustment of status, but to encourage officers and practitioners to conduct a more careful discretionary analysis. The existing legal standards remain in place—this memo is primarily a call for greater consistency and diligence in applying them.
Zhang & Associates PC was founded in 1996 and is celebrating its 30th anniversary this year. Over the past three decades, the firm’s team has provided professional immigration services to tens of thousands of clients, earning a nationwide and international reputation.
About the Author
Attorney Jian Joe Zhou is a Managing Partner at Zhang & Associates, P.C., with over 20 years of experience in business immigration law. He has successfully handled thousands of immigration cases, including complex H-1B petitions across various industries.
For legal inquiries, you may contact Attorney Zhou at jzhou@hooyou.com.
Founded in 1996, Zhang & Associates, P.C. offers legal services to clients worldwide in all aspects of U.S immigration law. We have successfully handled over ten thousand immigration cases.
At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, I-485 I-130, H-1B, O, L and J cases. In the past
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(05/23/2026)