New USCIS Policy Memorandum Characterizes Adjustment of Status as an “Extraordinary Relief” Authorized as a Matter of Administrative Grace

What Factors are Taken into Consideration When Assessing Whether an Adjustment of Status Applicant Warrants a Favorable Exercise of Discretion?

The USCIS Policy Manual, at Chapter 10(B)(2) indicates that the following factors, among others, may be taken into consideration when weighing whether an applicant warrants a favorable exercise of discretion:

• Family and community ties, including:
  • Whether applicant has family ties in the U.S. & the closeness of those relationships
  • Whether it would cause hardship to the applicant or close relatives if the application were denied
  • Length of lawful residence in the U.S., status held and conduct during residence, particularly if applicant began residency at a young age.
• Immigration status & history
  • Whether applicant has complied with immigration laws and conditions of any statuses held
  • Whether the applicant has an approved humanitarian-based immigrant or nonimmigrant petition, waiver of inadmissibility, or other form of relief and the underlying humanitarian, hardship, or other factors that resulted in the approval.
• Business, employment, and skills
  • Property, investment, or business ties in the U.S.
  • Employment history, including the type, length, and stability of the employment
  • Education, specialized skills, and training from an educational institution in the United States relevant to the current or prospective employment and earning potential in the United States
• Community standing and moral character
  • Whether the applicant has demonstrated a respect for law and order, and possesses good moral character, as demonstrated by lack of a criminal record and evidence of good standing in the community
  • Honorable service in the U.S. armed forces or other evidence of value and service to the community
  • Current or past cooperation with law enforcement authorities
  • Demonstration of reformed or rehabilitated criminal conduct, where applicable
  • Paying taxes, child support, and/or complying with any civil court orders
  • Community service not imposed by the courts
• Other
  • Absence of any significant undesirable or negative factors or other indicators of good moral character

Best practice is now to submit evidence that an applicant warrants a favorable exercise of discretion at the time of filing. Any applicants with a criminal record and/or a history of immigration violations should carefully weigh whether to adjust status or to consular process.

It should also be noted that, while not mentioned in the USCIS Policy Manual, page 4 of the new memo discusses that foreign nationals who are paroled into the U.S. or who are admitted as nonimmigrants normally are expected to depart from the United States at a specific time to a residence abroad. That background is cited as impetus for the policy shift and indicates that it is the failure of temporary status holders to depart from the U.S. in a timely manner that is driving the policy change.

This emphasis is noteworthy inasmuch as there are two nonimmigrant classifications, H and L, that are exempted by statute, at INA §214(b), from the requirement to maintain a residence abroad. H and L status holders thereby enjoy what has been termed “dual intent,” or the ability to maintain a temporary, nonimmigrant status while simultaneously pursuing lawful permanent residency. One can therefore deduce the maintaining H or L status should be viewed as positive factor in the agency’s exercise of discretion. However, the memo does not state as much outright.

What are the Potential Impacts of the New Policy?

The new policy will likely result in many applicants for permanent residency changing course from adjustment of status to consular processing, which will result in backlogs in immigrant visa processing at consular posts. In 2025, the Federal News Network reported that in July of that year, the Department of State had laid of more than 1,300 employees in “the largest and most complex workforce reduction of its kind.” This has left consulates understaffed. The onslaught of a voluminous new caseload is likely to exponentially increase delays, potentially leading to years-long backlogs for immigrant visas.

The policy will also likely lead to increased I-485 Requests for Evidence and denials, as well as the initiation of removal proceedings against denied applicants who are out of status or otherwise deportable.

We also anticipate that there will be legal challenges to this new policy in federal district court pursuant to the Administrative Procedure Act, which requires that substantive federal agency policy changes undergo a strict notice and comment process through publications in the Federal Register.