Trump Administration Upends Long Standing Adjustment of Status Practices

In a recent USCIS memo dated May 21, 2026, the Trump administration announced an extraordinary departure from the long-standing USCIS policies and practices as it relates to the immigration process known as Adjustment of Status or “AOS.” While the memo does not change existing law in any way, it pronounces a dramatic departure from how the USCIS has been applying a very routine immigration process that has been in place for all of the 24 years I have been in practice.

AOS is an immigration process that allows persons who are physically present in the U.S. to apply for an immigrant visa without having to return to their home country. Generally speaking, to qualify once must have been inspected and lawfully admitted by an immigration official and have a currently valid immigration status in order to qualify for AOS. With some limited exceptions, persons who enteedr the U.S. unlawfully or those who entered lawfully but subsequently overstayed or otherwise fell out of status do not qualify for AOS.

However, until Trump’s recent upending of decades of common practice, a foreign national who was legally present in the U.S. and in current lawful status could apply for lawful permanent residency through the AOS process provided that an immigrant visa was immediately available to her. Take the example of a Korean national who entered the U.S. on a student visa to study at an American university. Let’s say the Korean national meets a U.S. citizen student at college and they decide to get married. As a result of this marriage, an immigrant visa would be immediately available to the Korean national. Furthermore, because she was in lawful non-immigrant student visa status under the previous USCIS AOS policy she could apply for AOS and it would be routinely granted excepting some extraordinary circumstance. This would allow the Korean national to avoid the nearly two year long processing times and other costs and hassle associated with applying for lawful permanent residency at the U.S. Embassy in Korea.

The AOS process, by law and regulation, is and always has been “discretionary” meaning it is not something that any particular applicant is entitled to. However, as a matter of long-standing practice and general good common sense the USCIS has generally routinely exercised this discretion favorably in cases like the one I described above. In fact, because it was such a long-standing and established practice applicant’s were not required to do anything to establish or persuade the USCIS that it should exercise this discretion. USCIS officers would only not exercise discretion and allow AOS in cases of potential fraud, unauthorized employment or if the applicant had engaged in other unlawful conduct or otherwise violated the terms of his or her visa.

This has now all changed. According to the new Trump AOS policy memo, all applicants for AOS have the burden of persuading the USCIS that their particular case warrants the favorable exercise of discretion and that such discretion will only be excised in the case of “extraordinary circumstances.” Of course, the memo does not define or even suggest what it means by “extraordinary circumstances.” Thus, it may be several months or years before we get some clarification through litigation or otherwise regarding what exactly an applicant must establish to obtain the discretionary grace of the Trump administration.

If this policy is enforced firmly it will result in an extraordinary amount of additional delay, long family separation, huge cost increases (both for the intending immigrant and the U.S. government) and significant economic impact in the case of skilled foreign national workers who are eligible to apply for lawful permanent residency.

I will update this post with more information as more information becomes available regarding how this new and vaguely written policy is rolled out. In the meantime, it is important to know that AOS is no longer a “routine” process and will require some well-informed advocacy and could result in many AOS applicants having to return to their home countries and go through the long and tedious process of National Visa Center and consular processing.

For further information about this new policy you may also take a look at a post from the American Immigration Lawyers Association (“AILA.”)

If you are considering apply for Adjustment of Status and would like some assistance please feel free to contact me today.