Search results for: uscis

Over the past two weeks, U.S. Citizenship and Immigration Services (USCIS) has transferred a large volume of pending EB-5-based Form I-485 adjustment of status applications from the California Service Center (CSC) to the Texas Service Center (TSC). Immediately following transfer, some applicants are receiving Requests for Evidence (RFEs) seeking Form I-693 medical examinations and providing 30 days to respond. Some of the impacted cases are for EB-5 investors, as previously the CSC adjudicated all Form I-485 applications under that category.

All applicants for adjustment of status must undergo a medical examination with a designated USCIS civil surgeon and submit the results on Form I-693. The examination confirms that the applicant has undergone the required physical and mental health screening, does not have certain communicable diseases, and has received required vaccinations. Because each family member must submit a separately completed Form I-693, the cost and time may be significant for families filing together, especially where additional testing or vaccines are ordered.

Historically, Form I-693 medical examinations remained valid for the duration of a pending adjustment application. Since 2023, however, USCIS has limited the validity period to two years from the date the civil surgeon signs the form.

Some recent RFEs have requested updated medical examinations even where fewer than two years have elapsed since the original Form I-693 was completed and submitted, raising questions about why replacement medicals are being requested in cases where the prior examination should still be valid.

At the same time, these RFEs are being issued with abbreviated response periods. GT’s Immigration & Compliance Practice has observed numerous RFEs of this type providing 30 days to respond, rather than the more typical 87-day response period.

The practical impact is significant. EB-5 investors who do not act quickly, or who assume USCIS will accept a previously submitted medical examination without further action, may face denial of their adjustment application at the final stage of the green card process.

This trend also comes against the backdrop of USCIS’s August 2026 policy guidance emphasizing stricter evidentiary review, greater officer discretion to deny deficient filings without first issuing a Request for Evidence or Notice of Intent to Deny (NOID), and the agency’s authority to set response deadlines that are shorter than the maximum period allowed by regulation.

EB-5 investors may wish to review any USCIS transfer notices, RFEs, or other correspondence relating to a pending Form I-485 application. Applicants who receive a request for a new Form I-693 might wish to schedule a civil surgeon appointment as soon as possible and begin gathering any required supporting documentation, including evidence of updated vaccinations where applicable.

When U.S. Citizenship and Immigration Services (USCIS) issued updated guidance on Aug. 5, 2026, regarding evidentiary standards, Requests for Evidence (RFEs), and Notices of Intent to Deny (NOIDs), much of the immediate attention focused on the agency’s renewed emphasis on complete filings and its discretion to deny certain cases without first issuing an RFE or NOID.

Only weeks into implementation, however, another aspect of the policy is becoming increasingly important for employers, foreign nationals, and immigration practitioners: significantly shorter RFE response periods.

We are now seeing RFEs issued under the new framework that provide 30 days to respond, rather than the 84-day response period practitioners have commonly received in cases.

That is a meaningful operational change.

What Changed on Aug. 5?

The Aug. 5 policy guidance outlined several principles that substantially increase the importance of preparing a complete and well-documented filing from the outset. USCIS emphasized that applicants and petitioners bear the burden of establishing eligibility at the time of filing and must remain eligible through adjudication. The agency also restored broader discretion to deny a benefit request without first issuing an RFE or NOID where required initial evidence is missing or the evidence submitted does not establish eligibility.

The policy applies to benefit requests pending or filed on or after Aug. 5, 2026, unless otherwise provided by regulation or USCIS policy. But the guidance also addressed something that received comparatively less attention: how much time USCIS gives applicants and petitioners to respond when it does elect to issue an RFE.

The 84-Day Response Period May No Longer Be Assumed

USCIS regulations establish a maximum, rather than a guaranteed, response period for RFEs. An RFE may provide a response period determined by USCIS, but that period cannot exceed 12 weeks.  Historically, practitioners became accustomed in many case types to receiving the maximum 12-week — or 84-day — response period. That time was particularly important when an RFE required extensive documentation, expert opinions, corporate records, financial evidence, or information from multiple third parties.

Under the new guidance, USCIS has made clear that officers may establish case-specific response periods shorter than the regulatory maximum. We are now seeing that authority exercised in practice, with RFEs providing approximately 30 days to prepare and submit a complete response. The distinction is important: USCIS has not adopted a universal 30-day RFE deadline. Rather, the agency is exercising its existing authority to provide shorter response periods. The practical result for applicants and petitioners may nevertheless be significant.

Thirty Days Can Pass Quickly

A 30-day deadline may be challenging even for a relatively straightforward RFE. For more complex employment-based or investment-based matters, an RFE may require coordination among employers, employees, investors, accountants, economists, business-plan writers, regional centers, project developers, educational institutions, foreign banks, or other third parties. Documents may need to be obtained from overseas. Foreign-language materials may require certified translations. Corporate or financial records may need to be assembled and analyzed. Expert reports may need to be prepared or updated.

The difference between 84 days and 30 days may therefore materially affect how an RFE response must be managed. Moreover, USCIS generally does not grant extensions of an RFE response deadline. The response must be submitted within the period provided in the notice. The new policy also makes partial responses particularly risky. USCIS guidance provides that submitting only some of the requested evidence may be treated as a request for the agency to decide the case on the existing record.

The Broader Message: Front-End Preparation Matters More Than Ever

The shortened RFE periods reinforce the larger message of USCIS’s Aug. 5 policy change: applicants and petitioners should not view the RFE process as an opportunity to complete or substantially supplement a filing that was not fully developed when submitted. 

This has several practical implications. First, applicants may wish to prepare filings as though USCIS will adjudicate them based entirely on the initial submission. Applicants may want to include required initial evidence and proactively address foreseeable eligibility issues. 

Second, applicants, petitioners, and employers should consider preserving the supporting records underlying the filing so they can be accessed quickly if USCIS raises questions. Third, when an RFE is received, it should be reviewed immediately. Under the prior practice, parties sometimes had sufficient time to spend several weeks gathering documents before beginning substantive preparation of the response. A 30-day deadline leaves little room for delay.

Finally, cases involving third-party documentation deserve particular attention. If evidence may later need to be obtained from banks, former employers, universities, foreign government agencies, corporate affiliates, investors, or other outside sources, identifying those potential evidentiary needs before filing might substantially reduce risk.

What Employers and Foreign Nationals Should Consider Now

The first weeks following implementation of the Aug. 5 guidance suggest that the change is not merely theoretical. USCIS has signaled a more demanding approach to evidentiary sufficiency while simultaneously giving adjudicators greater discretion both to deny cases without first requesting additional evidence and, where an RFE is issued, to provide a shorter period in which to respond. For employers, investors, and foreign nationals, the practical takeaway is straightforward: the margin for correcting or supplementing a filing after submission may be shrinking. Petitions and applications should therefore be prepared as comprehensively as possible at filing, and any RFE or NOID received after Aug. 5 should be treated as immediately time sensitive. Applicants and petitioners should carefully review the deadline stated on the notice rather than assume that the traditional 84-day RFE response period applies.

As USCIS continues implementing the new policy, stakeholders should also watch closely to determine whether 30-day RFE response periods become more widespread across particular case types or adjudicating offices.

A missed biometrics appointment may appear to be an administrative matter that can be easily corrected, but immigration applicants should not assume that the U.S. Citizenship and Immigration Services (USCIS) will continue rescheduling missed appointments, even when there is a legitimate reason for being unable to attend.

USCIS has denied immigration benefit applications as abandoned for failure to appear for biometrics, including in cases where applicants previously requested that their appointments be rescheduled. A rescheduling request does not guarantee that USCIS will grant it, particularly where an appointment has already been rescheduled.

USCIS May Deny an Application for Failure to Appear

Biometrics are required for many immigration applications and allow USCIS to conduct identity, background, and security checks. Under 8 C.F.R. Section 103.2(b)(13)(ii), when an applicant fails to appear for required biometrics or another required in-person process, USCIS may treat the benefit request as abandoned and deny it unless, by the appointment time, USCIS has received a rescheduling request that it determines warrants excusing the failure to appear.

The regulation does not provide unlimited rights to reschedule. USCIS evaluates timely requests for good cause and retains discretion to determine whether another appointment is warranted. USCIS’s procedures reflect this limitation: the online biometrics rescheduling tool generally cannot be used once an appointment has already been rescheduled two or more times. In those circumstances, the applicant must contact USCIS directly.

The ability to request a new appointment should not be confused with a right to have that request granted.

International Travel and Extended Absences Create Additional Risks

This issue might become particularly problematic when an applicant is outside the United States when USCIS schedules biometrics. An applicant may have notified USCIS of travel plans or requested a different appointment date, but that does not mean USCIS will accommodate the request or wait until the applicant returns.

For applicants residing abroad, USCIS policy provides that the agency may, rather than must, arrange biometrics collection at certain locations outside the United States. In practice, overseas biometrics collection is rarely available as a practical alternative to appearing at a USCIS Application Support Center. Applicants planning extended international travel may wish to account for the possibility of a biometrics appointment before departing and should be prepared to return to the United States promptly if necessary to attend. Travel plans, even legitimate or longstanding ones, do not require USCIS to repeatedly reschedule an appointment.

Monitor USCIS Notices Carefully

The risk increases when applicants do not receive or review an appointment notice promptly. USCIS generally sends biometrics notices to the applicant’s address of record. Applicants may wish to closely monitor their physical mail and USCIS online accounts throughout the pendency of a case, even when represented by counsel. Those traveling for extended periods should arrange for someone to monitor their mail and immediately forward any USCIS correspondence. Applicants should also ensure that USCIS has their current mailing address and that any required change of address has been properly submitted.

For EB-5 investors specifically, applicants may wish to maintain a U.S. address or residence, monitor their mail regularly, and attend scheduled appointments. Two or more rescheduling requests or missed appointments might result in denial of an immigration application, including Form I-485 or Form I-829. Overcoming a denial based on abandonment is difficult where USCIS has mailed the notice to the applicant’s address of record.

Promptly Rescheduling If Necessary

There are legitimate circumstances in which an applicant cannot attend a scheduled appointment, and USCIS permits rescheduling requests based on good cause. If rescheduling is unavoidable, however, the request should be made before the scheduled appointment and in accordance with USCIS procedures.

Applicants should retain documentation confirming the request and the circumstances supporting it and continue monitoring the case until USCIS issues a new appointment notice. This is particularly important for applicants who have previously rescheduled.

Where reasonably possible, attending the appointment USCIS has scheduled may help reduce the risk of an abandonment denial.

An Abandonment Denial May Have Significant Consequences

A denial for abandonment can be particularly consequential because USCIS may deny the application without reaching its substantive merits.

Depending on the benefit involved and the applicant’s circumstances, the consequences may extend beyond filing another application. A denial might affect an applicant’s ability to remain or work in the United States, travel, pursue adjustment of status, or continue an immigration strategy dependent on a pending application. An abandonment denial may potentially be challenged through a motion to reopen in certain circumstances, but doing so would involve additional filing fees, legal fees, delays, and uncertainty, with no guarantee that USCIS will reopen the case.

Practical Takeaways for Immigration Applicants

Immigration applicants with pending USCIS matters should consider a biometrics appointment a significant case requirement, not a routine appointment that can be moved for convenience. Applicants may wish to:

  • Monitor physical mail and their USCIS online account regularly;
  • Keep their mailing address current with USCIS;
  • Arrange for USCIS correspondence to be monitored during international travel or extended absences;
  • Attend the originally scheduled biometrics appointment whenever reasonably possible;
  • If rescheduling is unavoidable, submit the request before the appointment and retain confirmation of the request;
  • Not assume that repeated rescheduling requests will be granted; and
  • Continue monitoring the case until a new appointment is confirmed.

Applicants should not assume that a biometrics appointment can simply be rescheduled. USCIS has authority to deny an application as abandoned for failure to appear and discretion in determining whether a rescheduling request excuses that failure. Careful monitoring of USCIS correspondence and timely attendance at biometrics appointments may help prevent an otherwise viable immigration application from being denied on procedural grounds.

The Trump administration has prioritized immigration policy, with new developments emerging on an almost weekly basis. From changes affecting visa processing and adjustment of status to increased vetting, enforcement initiatives, employment authorization, humanitarian programs, and agency adjudication standards, employers and foreign nationals are navigating a rapidly shifting immigration landscape.

The latest development comes from U.S. Citizenship and Immigration Services (USCIS). On Aug. 5, 2026, USCIS updated its Policy Manual to reinforce the principle that applicants and petitioners should establish eligibility for an immigration benefit at the time of filing. The agency has also restored broader discretion for officers to deny certain applications and petitions without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID).

This represents a departure from the approach adopted in 2021, under which USCIS officers were generally instructed to issue an RFE or NOID when additional evidence could potentially establish eligibility. Under that policy, an incomplete filing did not necessarily result in denial without first allowing the applicant or petitioner an opportunity to supplement the record.

What Changed?

Under the August 5 policy update, USCIS emphasizes that the burden rests with the applicant or petitioner to establish eligibility and submit required initial evidence at the time of filing. USCIS form instructions identify the initial evidence required for particular benefit request, and officers once again have broader discretion to deny a filing without providing an opportunity to cure deficiencies through an RFE or NOID. This approach mirrors a policy USCIS implemented during the first Trump administration in 2018, which similarly expanded adjudicators’ discretion to deny filings without first issuing an RFE or NOID where required initial evidence was missing or the record did not establish eligibility.

The 2026 policy is effective immediately and applies to benefit requests pending or filed on or after Aug. 5, 2026, except where regulations or other USCIS policies provide otherwise.

USCIS has characterized the change as an effort to discourage frivolous or substantially incomplete filings and prevent applicants from submitting what the agency describes as “placeholder” applications to obtain benefits associated with a pending filing, such as employment authorization.

The Practical Message: The Initial Filing Matters More Than Ever

For employers, investors, foreign nationals, and their counsel, the practical consequence is straightforward: assuming that an RFE will provide an opportunity to fix an incomplete filing carries increasing risk. An RFE should not be viewed as part of ordinary case preparation. Under the prior policy, however, applicants and petitioners had greater assurance that USCIS would request additional evidence where a potentially curable deficiency existed. That assurance has now been substantially reduced.

Petitioners and applicants should approach the initial filing as though it may be their only opportunity to establish eligibility. Required initial evidence should be carefully identified, documentation should be reviewed for inconsistencies or gaps, and legal arguments should be developed before submission rather than reserved for a possible RFE response.

What This Means for Employment-Based Immigration

The policy has implications across employment-based immigration categories. H-1B, L-1, O-1, immigrant petitions, and adjustment applications frequently involve complex factual records, and a missing document or inadequately developed eligibility argument can materially affect adjudication outcomes.

Employers should be cautious about filing cases primarily to meet a deadline when key evidence remains outstanding. While timing pressures are common in immigration practice, the new policy increases the importance of determining whether the record submitted at filing independently demonstrates eligibility. It also reinforces the need for employers and foreign nationals to respond promptly to requests from immigration counsel for supporting documentation. Delays in providing corporate records, employment documentation, educational evidence, or other required materials until shortly before a filing deadline may create greater risk in the current adjudicatory environment.

Significance for EB-5 Investors

The timing of this policy change is notable for EB-5 investors preparing petitions ahead of the Sept. 30, 2026, grandfathering deadline under the EB-5 Reform and Integrity Act.

EB-5 petitions are inherently document-intensive. Investors may need extensive documentation establishing the lawful source and path of investment funds, while the underlying project and regional center filings involve their own substantial evidentiary requirements. With September 30 approaching, investors seeking to preserve grandfathering protections may feel pressure to file quickly. The new USCIS policy, however, makes the distinction between filing quickly and filing completely important.

Investors should not assume that deficiencies in source-of-funds documentation or other required evidence can be addressed later through an RFE. Cases should be initiated sufficiently in advance to permit counsel to review bank records, tax documents, employment and compensation records, property transactions, gifts, loans, business proceeds, and other evidence relevant to the particular source of investment capital. The deadline remains important, but so does filing a petition capable of establishing eligibility based on the record submitted to USCIS.

Adjustment of Status Filings Also Require Care

The policy applies equally to adjustment of status applications, particularly as USCIS continues to increase scrutiny of adjustment filings and the circumstances surrounding an applicant’s eligibility. Foreign nationals filing Form I-485 together with related applications for employment authorization and advance parole should make certain that the adjustment application itself is complete and supported by required initial evidence.

The fact that a pending adjustment application may provide collateral benefits makes it important not to treat the underlying filing as a placeholder. Immigration strategies built around obtaining an Employment Authorization Document (EAD) or other interim benefits from a pending application should be evaluated carefully. The administration has identified the use of incomplete filings to obtain associated immigration benefits as one of the concerns underlying the new policy.

Another Development in a Rapidly Changing Immigration Environment

This policy should not be viewed in isolation. The administration has maintained a focus on immigration, and policy changes are occurring with frequency across USCIS, the Department of State, Customs and Border Protection, Immigration and Customs Enforcement, and the Department of Homeland Security. Immigration policy is evolving not only through legislation or formal rulemaking, but also through policy memoranda, executive actions, agency guidance, adjudication practices, and litigation.

For employers and foreign nationals, immigration planning should not be static. Strategies that were appropriate months ago — or even weeks ago — may warrant reconsideration as new rules, policy memoranda, executive actions, litigation developments, and adjudication standards emerge. The Aug. 5 USCIS policy update reflects that changing environment and carries a procedural message: applicants and petitioners should not rely on USCIS to provide a second opportunity to establish eligibility. Preparation before filing remains essential.

May 2026, United States Citizenship and Immigration Services (USCIS) issued a policy memorandum signaling a shift in how employment-based permanent residence cases may be processed. The memorandum encourages adjudicators to deny adjustment of status (Form I-485) applications rather than issue requests for evidence (RFEs) in appropriate cases, with the expectation that many applicants could instead pursue immigrant visa processing abroad through U.S. consulates.

Considered alongside the current state of the Department of State (DOS), the policy raises an important question: can DOS realistically absorb an increase in these cases?

Recent reports suggest the answer is uncertain. Also see our June 2026 blog post on early implementation trends.

A Department Under Strain

A recent Financial Times article describes challenges facing the DOS. More than half of U.S. ambassadorial positions reportedly remain vacant, staffing has been reduced by more than 20%, and over 3,000 employees have departed. Career diplomats have been replaced at historically low rates, while consular sections – already managing high visa demand – are expected to operate with fewer personnel and reduced institutional experience.

Although embassies continue operating under Chargés d’Affaires, leadership vacancies and workforce reductions affect efficiency, consistency, and the DOS’ capacity to process complex immigration matters.

For years, employment-based applicants have generally viewed adjustment of status as the more predictable path to permanent residence because it allows them to remain in the United States while USCIS adjudicates the case. If a growing number of applicants are instead required to complete processing through U.S. consulates overseas, the operational realities at DOS become important.

What This Could Mean for Employment-Based Applicants

Longer Processing Times

Shifting cases from USCIS to DOS may transfer existing backlogs from one agency to another rather than reduce overall processing times.

Employment-based immigrant visa cases often require coordination across multiple government agencies, including the National Visa Center and the applicable U.S. embassy or consulate. Reduced staffing and fewer available interview appointments could lengthen the time required to complete permanent residence processing.

For employers planning workforce transitions or international recruitment, these delays may create uncertainty.

Greater Risk of Status Gaps

A key advantage of adjustment of status is that applicants may remain lawfully present in the United States while the application is pending.

Applicants pursuing consular processing, however, face a different set of challenges.

If an individual reaches the end of their underlying nonimmigrant status before an immigrant visa interview becomes available, questions may arise regarding whether they can lawfully remain in the United States while waiting for overseas processing. Depending on the facts of the case, applicants may need to maintain an independent nonimmigrant status for a longer period than originally anticipated.

This is particularly important for employees whose H-1B, L-1, E-2, TN, or other temporary status may be approaching expiration.

Employment Authorization May No Longer Be Available

Applicants adjusting status in the United States generally become eligible to obtain employment authorization documents (EADs) and advance parole while their Form I-485 is pending.

Applicants pursuing immigrant visa processing abroad generally do not receive these interim benefits.

As a result, employers may need to rely on extensions of underlying work-authorized status. Where extensions are unavailable, interruptions in employment authorization are a possibility worth planning for.

Travel and Mobility Challenges

Adjustment applicants typically receive advance parole allowing international travel while their green card application is pending.

Consular processing requires applicants to coordinate travel, visa interviews, medical examinations, and international logistics. Delays in visa issuance following an interview can result in employees remaining abroad for an extended period, disrupting business operations and personal obligations.

Variability in Visa Adjudications

Reduced staffing may also affect consistency.

Officers handling complex employment-based immigrant visa cases with less experience may produce greater variation in adjudications. Applicants and employers should anticipate more detailed interview preparation and more comprehensive supporting documentation.

Practical Considerations for Employers

Employers sponsoring permanent residence should evaluate whether employees have a viable strategy for maintaining work authorization if processing extends beyond original expectations.

Considerations include:

  • Reviewing expiration dates for underlying nonimmigrant status.
  • Identifying employees who may require additional H-1B, L-1, or other status extensions.
  • Preparing for longer overseas processing timelines.
  • Assessing business continuity if key personnel must remain abroad pending visa issuance.
  • Building additional time into onboarding and workforce planning.

Looking at the Broader Picture

These developments may represent more than a temporary adjustment.

If USCIS increasingly directs applicants toward consular processing while DOS continues operating with reduced staffing and leadership vacancies, employment-based immigration processing may experience changes affecting where cases are adjudicated and the timing of permanent residence processing.

Immigration strategies that assumed adjustment of status as the default path warrant review, with greater attention to maintaining nonimmigrant status, preserving uninterrupted work authorization, and preparing for longer and more complex consular processing.

As federal immigration agencies continue to evolve, permanent residence planning will benefit from evaluating how the immigration system functions as an interconnected whole rather than focusing on any single agency’s policy change in isolation.

In a rebuke of recent USCIS immigration policies, a federal district court in Rhode Island vacated four agency policies that effectively suspended adjudication of thousands of immigration benefit requests. The June 5, 2026, decision in Dorcas International Institute of Rhode Island v. USCIS found that the policies exceeded USCIS’s statutory authority and violated the Administrative Procedure Act (APA). As a result, USCIS may no longer rely on these policies to halt adjudications of asylum applications, adjustment of status applications, employment authorization requests, naturalization applications, and other immigration benefits.

The ruling represents a judicial setback to the administration’s recent immigration enforcement initiatives and may serve as a reminder that, by law, immigration agencies cannot fundamentally alter congressionally created immigration processes through internal policy memoranda alone.

Which Policies Did the Court Strike Down?

The court invalidated four separate USCIS policies implemented in late 2025 and early 2026.

1. Benefits Hold Policy

This policy directed USCIS officers to suspend adjudication of immigration benefits filed by nationals of countries subject to the administration’s travel restrictions. Affected benefits reportedly included adjustment of status applications, employment authorization documents (EADs), naturalization applications, travel documents, and other immigration benefits. The policy had notable consequences for nationals of countries that had been designated under the administration’s travel and visa restrictions. While the list evolved over time, impacted countries included Afghanistan, Myanmar (Burma), Chad, the Republic of the Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan, and Yemen, among others. For some individuals from these countries, the impact extended well beyond international travel. Immigration benefits that often serve as a pathway to long-term stability in the United States — including adjustment of status, employment authorization, asylum, and naturalization — were effectively placed in limbo, creating uncertainty for families, employers, universities, healthcare institutions, and communities nationwide.

2. Global Asylum Hold Policy

USCIS also imposed a nationwide pause on adjudication of asylum and withholding applications, regardless of the applicant’s nationality.

3. Comprehensive Re-Review Policy

The agency instructed officers to revisit and re-review certain previously approved immigration benefits involving nationals of designated countries, creating uncertainty even for individuals who had already received favorable decisions.

4. Country-Specific Factors Policy

USCIS amended its guidance to instruct adjudicators to treat country-specific concerns associated with certain nationalities as a negative factor in discretionary immigration decisions.

The court concluded that all four policies were contrary to law and arbitrary and capricious under the APA.

Why This Decision Matters

Though the decision directly affects applicants from the countries targeted by the travel restrictions, its importance extends beyond those individuals. At its core, the case addresses a fundamental question: Can USCIS simply stop adjudicating immigration benefits that Congress has authorized? The court ruled that the answer is no.

Immigration statutes generally require USCIS to adjudicate applications and petitions filed under the immigration laws. While the agency has broad authority to approve or deny cases based on eligibility requirements, it does not have unlimited authority to place entire categories of applications into indefinite limbo based solely on an applicant’s nationality, country of birth, or generalized policy concerns. The court emphasized that applicants had followed the legal processes established by Congress and USCIS itself yet were left waiting indefinitely for decisions based on factors unrelated to their individual eligibility. In doing so, the decision reinforced a fundamental principle of administrative law: agencies must exercise the authority Congress granted them, but they may not create new barriers or suspend statutory processes absent clear legal authorization.

Implications for Employers

For employers, the practical consequences of these policies were notable. Foreign nationals whose adjustment applications, EAD renewals, or other immigration benefits were placed on hold often faced uncertainty regarding work authorization, international travel, onboarding, promotions, and long-term workforce planning. Universities, healthcare organizations, research institutions, technology companies, and multinational employers were impacted because many employees, researchers, physicians, and students originated from countries subject to the restrictions. If the court’s ruling remains in place, employers may begin to see movement on long-stalled applications and employment authorization requests. This could provide more predictability for workforce planning and immigration compliance.

At the same time, employers should remain cautious. USCIS has not yet issued comprehensive guidance regarding implementation of the decision, and the government may seek a stay pending appeal. As with many major immigration rulings, the litigation may continue even after the district court’s decision.

An Important Limitation: The Decision Does Not Eliminate Travel Restrictions or Guarantee Visa Issuance Abroad

It is important to understand what the decision does — and does not — do.

The policies the court vacated were USCIS adjudication policies. They governed how USCIS processed applications and petitions within its jurisdiction, including adjustment of status applications, employment authorization requests, naturalization applications, asylum applications, and other immigration benefits. The decision does not invalidate the underlying travel restrictions themselves, nor does it directly affect visa issuance decisions made by the U.S. Department of State at consulates and embassies abroad. As a result, individuals pursuing adjustment of status in the United States may see the most immediate benefit from the ruling, as USCIS should now resume adjudicating applications that may have been placed on hold under the challenged policies.

For individuals pursuing immigrant visa processing abroad, the impact may be more limited. If USCIS had delayed adjudication of an underlying petition because the beneficiary was from one of the affected countries, that obstacle should now be removed. However, once a case reaches the National Visa Center and a U.S. consulate, applicants may still encounter travel restrictions, enhanced vetting requirements, administrative processing, or other visa issuance limitations arising from separate presidential actions or Department of State policies. In other words, the court’s decision restores USCIS’s obligation to adjudicate immigration benefits, but it does not guarantee that a visa will be issued overseas or eliminate other restrictions that may apply to nationals of designated countries.

What Happens Next?

The decision vacated the policies themselves rather than merely prohibiting their enforcement against specific plaintiffs. That distinction is important. Vacatur under the APA generally means the challenged agency actions are set aside and may no longer be relied upon while the decision remains in effect. As a result, affected applications should return to normal adjudication processes unless a higher court intervenes.

However, litigation may not be over. The government may appeal the decision and seek a stay that would temporarily restore the policies while appellate review proceeds. USCIS may also explore alternative approaches to implementing its national security objectives that attempt to address the legal deficiencies identified by the court.

When USCIS issued its May 21 memorandum emphasizing consular processing as the preferred pathway for many intending immigrants seeking permanent residence, the immigration community began raising questions. Would adjustment of status (AOS) applications become more difficult to approve? Would USCIS begin issuing widespread requests for evidence (RFEs) challenging applicants’ eligibility to adjust status in the United States? Would employment authorization and travel documents be affected? Would foreign nationals already pursuing AOS face increased scrutiny at interviews?

Now two weeks later, while it remains too early to draw definitive conclusions, implementation so far has been more measured than many initially anticipated. As is often the case with major immigration policy announcements, the practical impact of a memorandum depends not only on the language of the policy itself but also on how adjudicators interpret and apply that guidance in individual cases. Patterns are beginning to emerge, though the type of widespread disruption some stakeholders anticipated has not yet materialized. For a discussion of the memorandum, stream GT’s Immigration Insights Podcast Episode 25.

A Brief Reminder: What Did the Memorandum Do?

The memorandum signaled USCIS’s preference that many intending immigrants pursue immigrant visa processing abroad through U.S. consulates rather than AOS from within the United States. For decades, AOS has served as a critical pathway allowing eligible foreign nationals already present in the United States to complete the permanent residence process without departing the country. The memorandum raised concerns because it appeared to encourage greater scrutiny of adjustment filings and potentially shift adjudicative discretion toward consular processing in certain circumstances. Because AOS offers significant practical advantages – including the ability to remain in the United States while a case is pending, obtain employment authorization, and avoid many uncertainties associated with overseas visa processing – the memorandum generated concern among employers, foreign nationals, and immigration practitioners.

What Are We Seeing So Far?

While every case is unique, several trends have emerged during the first two weeks following issuance of the memorandum.[1]

Adjustment Applications Continue to Be Approved

Many AOS applications filed before the memorandum was issued continue to be approved, including for applicants in valid F-1, H-1B, and L-1 status. To date, there has been no indication of a blanket slowdown or freeze affecting adjustment applications that were already pending when the memorandum was released.

Employment Authorization and Travel Documents Continue Moving Forward

There are continued approvals of employment authorization documents (EADs) and advance parole (AP) applications filed in connection with AOS cases.

This is significant for applicants relying on adjustment-based work authorization or travel permission while awaiting a decision on their green card applications.

Adjustment Interviews Continue

Adjustment interviews at local USCIS field offices are continuing without apparent interruption. There is variation in how officers appear to be approaching the memorandum. In some interviews, applicants have reported that the memorandum was not discussed at all, with officers focusing on traditional adjustment issues such as admissibility, maintenance of status, employment history, family relationships, and application accuracy. In other interviews, applicants have reported being asked why they chose AOS rather than consular processing, a line of questioning consistent with the language and policy objectives reflected in the memorandum. At this stage, these questions may be exploratory rather than outcome-determinative. The fact that some officers are raising the issue suggests that field offices are aware of the guidance and may be incorporating it into interview practices.

Limited Reports of Requests for Evidence

One concern following the memorandum was whether USCIS would begin issuing RFEs requiring applicants to justify why AOS is appropriate in lieu of consular processing. While practitioners around the country have reported receiving such RFEs in some cases, our office has not yet received any RFEs specifically seeking that explanation. The relatively short period since the memorandum’s issuance makes it difficult to assess whether such requests will become more common. Historically, USCIS implementation of major policy changes often varies by field office, service center, and adjudicator before more consistent practices emerge. As additional cases move through the system, we may gain greater insight into whether these RFEs represent isolated examples or the beginning of a broader adjudication trend.

No Significant Travel Issues Reported

Travel concerns were another area of uncertainty following the memorandum. Many applicants questioned whether travel on AP or travel in H-1B and L-1 status could become more complicated if USCIS adopted a stronger preference for consular processing. To date, we have not received reports from clients indicating unusual travel-related complications attributable to the memorandum.

A Growing Interest in Preserving Consular Processing Options

One practical response is increased interest in maintaining flexibility. Some individuals with approved immigrant petitions are electing to file Form I-824, Application for Action on an Approved Application or Petition, to preserve the possibility of consular processing should they decide – or be required – to pursue that route in the future. While filing Form I-824 is not necessary or advisable in every case, it reflects a broader trend among applicants seeking to keep multiple options available while the long-term impact of the memorandum becomes clearer. For certain individuals, particularly those with international travel obligations, complex immigration histories, or concerns about future policy developments, preserving optionality may be a prudent strategic consideration.

Considerations for Employers and Foreign Nationals

The memorandum is significant, but the implementation data available today does not support the conclusion that AOS is no longer viable or that applicants should automatically abandon pending or planned adjustment filings in favor of consular processing.

Each case warrants careful evaluation on its own merits. Factors such as immigration status, travel needs, country of citizenship, visa availability, processing times, family circumstances, and long-term immigration objectives should continue to drive strategic decision-making. For many applicants, AOS may remain the preferred and most practical path to permanent residence. For others, preserving consular processing as a backup option may provide additional flexibility. Immigration strategy is most effective when tailored to the individual circumstances of the applicant.

Looking Ahead

The first two weeks following the memorandum have provided some initial data points, but many questions remain unanswered. As additional cases move through interviews and adjudication, we expect to gain greater visibility into how field offices and service centers interpret the guidance. There may also be further policy clarification from USCIS, additional stakeholder engagement, new adjudication trends, and potentially litigation that could affect implementation. For now, AOS cases continue to move forward – applications are being approved, interviews are being conducted, employment authorization and travel documents continue to be issued.

[1] Disclaimer: The observations discussed in this blog post are based on our firm’s cases and discussions with colleagues throughout the immigration bar during the first two weeks following issuance of the memorandum. These observations are anecdotal in nature, may not be representative of all USCIS offices, adjudicators, or case types, and should not be viewed as predictive of any individual case outcome.

In this episode of the Greenberg Traurig’s Immigration Insights Podcast, host Kate Kalmykov is joined by GT colleagues Jen Hermansky and Michael Eisenstadt to analyze the USCIS Policy Memorandum issued on May 21, 2026, which represents a shift in how the agency intends to handle adjustment of status (AOS)—the process by which foreign nationals in the United States apply for a green card without leaving the country.

The memo reframes AOS as an “extraordinary benefit” subject to broad agency discretion, suggesting that most applicants should instead pursue consular processing at a U.S. embassy or consulate abroad. The panelists question whether this shift is operationally feasible given consulate understaffing, existing visa processing backlogs, and the ongoing pause on immigrant visa processing for nationals of 75 countries.

Their discussion covers the memo’s discretionary balancing test, its implications for a wide range of visa holders, and the tension between the memo’s guidance and existing statutory provisions that already permit AOS filings in many of the situations the memo treats as negative factors.

They share practical guidance including maintaining underlying nonimmigrant status, exercising caution around international travel for advance parole holders, and building documentation of economic and national interest arguments in support of pending or anticipated AOS filings.

On May 21, 2026, USCIS issued Policy Memorandum PM-602-0199, outlining a change to the adjustment of status (AOS) process under Form I-485. The Policy Memorandum (PM) states that applicants for permanent residence should generally process for immigrant visas at U.S. embassies and consulates abroad following immigrant petition approval, except in limited circumstances. The PM reframes AOS as an “extraordinary discretionary benefit.”

AOS is the procedure for applying for permanent residence, commonly referred to as a “green card,” while physically in the United States. It is used by applicants who are in the U.S. and relies on a statutory framework outlining AOS eligibility criteria and the administrative process for adjudicating applications. For those outside the U.S., applicants for permanent residence go through a similar process at a U.S. embassy or consulate abroad, known as “consular processing.” The PM states that AOS is not an entitlement but a discretionary form of “administrative grace,” even where statutory eligibility is met. The PM characterizes AOS as an “extraordinary” remedy that allows applicants to “bypass” the immigrant visa process through consular processing, which the memo describes as the “normal” procedure that “the Congress generally expects aliens to follow.” The PM instructs officers to apply a case-by-case discretionary analysis, weighing positive and negative factors, including immigration violations, failure to maintain status, and failure to depart, as part of a totality of the circumstances assessment.

Who Does This Impact

The PM applies to all AOS applicants, including individuals with:

(1) pending or approved family-based immigrant petitions (Form I-130);
(2) pending or approved employment-based immigrant petitions (Form I-140); and
(3) pending or approved immigrant investor petitions (Form I-526/Form I-526E).

What Is New

The PM reframes AOS as secondary to consular processing. It characterizes AOS as an “extraordinary” form of relief, describes it as an exception that allows applicants to avoid consular processing and states that AOS should be granted sparingly.

What Is Important

The PM directs USCIS officers to evaluate whether an applicant should be granted AOS based on overall equities, including immigration compliance, moral character, family ties to the U.S., and conduct after admission as a nonimmigrant. Officers are instructed to conduct a totality of the circumstances analysis weighing positive against negative factors. The PM also confirms that discretionary denials must articulate why negative factors outweigh positive ones.

The PM elevates certain adverse factors, instructing officers to treat the following as “highly relevant”:

  • Failure to maintain nonimmigrant status;
  • Failure to depart after admission or parole;
  • Conduct inconsistent with the purpose of admission; or
  • Immigration violations or fraud.

The PM states that maintaining lawful nonimmigrant status in dual-intent categories (such as H-1B or L-1) does not automatically guarantee AOS approval; officers are still instructed to apply the totality of the circumstances test using the discretionary factors listed in the PM.

The current Administration has indefinitely suspended the issuance of immigrant visas via consular processing to nationals of 75 countries citing public charge concerns. Notably, the AOS process already includes public charge-related questions, while consular processing currently does not. A finding that an applicant does not warrant the “extraordinary measure” of AOS, combined with the immigrant visa suspension affecting nationals of those 75 countries, could leave a significant number of applicants unable to pursue permanent residence through either pathway. Such a broad suspension of immigrant visas raises questions regarding Congressional intent, given that Congress has statutorily authorized the issuance of 480,000 family-based green cards and 140,000 employment-based each year.

The U.S. embassies and consulates worldwide are also facing capacity constraints following staff reductions, and applicants pursuing consular processing may encounter lengthy wait times for immigrant visas. Applicants with unlawful presence or status violations may trigger a three- or 10-year bar to reentry if they travel abroad and may wish to carefully consider whether to depart and the potential impact on subsequent immigrant visa processing.

Impact on Pending AOS Applications

The PM does not address whether it applies to already pending or newly filed AOS applications. There is no stated effective date, and no specific changes have been made to the USCIS Policy Manual. Because USCIS may seek to apply the PM to pending applications, applicants may consider gathering evidence of positive discretionary factors, including U.S. employment, absence of immigration violations, family and community ties in the U.S., and U.S. investments (particularly for EB-5 investors). USCIS may issue Requests for Evidence (RFEs) seeking documentation to support the totality of the circumstances determination.

Impact on Travel and Work Authorization for AOS Applicants

The PM does not specifically address travel on an advance parole document (AP) or working pursuant to an employment authorization document (EAD) issued while an AOS applicant is pending with USCIS. However, applicants who use AP to travel internationally should be aware that if USCIS seeks to deny the AOS while they are abroad under this guidance, the applicant may face obstacles reentering the U.S. Travel on AP carries additional considerations considering the PM’s publication.

Travel on AP may also disrupt certain types of underlying nonimmigrant status, including B, E, F, J, H-1B1, and O status. Applicants may wish to remain in the U.S. and forego international travel on AP to preserve underlying nonimmigrant status where possible.

What’s Unclear

The PM is subject to a range of interpretations, and its practical application to specific nonimmigrant classifications, including long-term work-authorized categories (dual intent or otherwise), is presently unclear. The PM states that the current statutory framework and the validity of precedent appellate decisions remain unchanged; however, a number of the court decisions cited in the PM are dated or were decided in other contexts, such as removal proceedings and are not directly relevant to AOS applications.

Potential Court Challenges

The PM directs adjudicators to treat AOS as an extraordinary measure secondary to consular processing requiring a showing of “unusual or outstanding circumstances,” which represents a shift in agency practice. Both the statutory interpretation and the reading of case law cited in the PM may become subject to litigation, depending on how the agency’s adjudication practices change.

The AOS statute includes certain exceptions permitting individuals to apply for permanent residence even where they may have violated status, overstayed a visa, or worked without authorization. For example, an immediate relative (such as a spouse or parent of a U.S. citizen) may still apply for AOS without having maintained status or where unauthorized employment occurred. Similarly, the statute provides an exception for certain employment-based applicants who have had a period of unauthorized stay or unauthorized employment of fewer than 180 days. Some of the “negative” factors listed in the PM, including failure to maintain nonimmigrant status and failure to depart after admission or parole, appear to conflict with these statutory exceptions and could form the basis for legal challenge.

Congress has expressly passed the AOS statute permitting these applications. USCIS administers the AOS applications. U.S. federal courts interpret whether policies by USCIS, such as the PM, conflict with Congressional intent or the language of the statute passed by Congress. Litigation in the federal courts may focus on claims under the Administrative Procedure Act (APA), including that the PM constitutes a rulemaking disguised as policy guidance (which would require public notice and comment procedures) and/or that the PM is not in accordance with the law (e.g. the “negative factors” listed in the PM conflict with statutory exceptions that still permit AOS approval).

From a policy standpoint, family reunification has been a longstanding principal of U.S. immigration law. Litigation may also focus on the PM’s expressed limitation of AOS as inconsistent with the statutory framework allowing AOS applications for family reunification, including in cases where an applicant violated status or accrued unlawful presence. For EB-5 applicants, Congress passed the EB-5 Reform and Integrity Act of 2022 (RIA), which explicitly permits the concurrent filing of AOS applications. There may be potential litigation challenges asserting that the PM conflicts with the plain text and Congressional intent of the RIA.

Any forthcoming litigation will likely seek a temporary restraining order (TRO), which could pause the PM from taking effect and being applied to pending cases.

Practical Considerations

  1. Applicants may document positive discretionary factors in newly filed AOS applications, including family ties in the U.S., lawful employment, community involvement, and tax compliance.
  2. Applicants should maintain their underlying nonimmigrant status where possible and may wish to forego international travel on AP.
  3. Applicants with an approved immigrant petition (Form I-130, Form I-140 or Form I526/I-526E) may wish to file Form I-824 with USCIS to initiate an immigrant visa case with the National Visa Center, which may be used in the event of a subsequent AOS denial.
  4. USCIS may issue additional guidance or clarification on the PM. The PM states that USCIS may issue further guidance on certain AOS categories or discrete populations to aid officers in identifying which applications may or may not be affected. USCIS may also clarify its policy positions following further review of the impact on applicants.

The PM may result in increased difficulty in obtaining a green card through the AOS process, particularly for applicants with prior immigration violations or those holding purely nonimmigrant intent visa categories (B-1/B-2, E-1/E-2/E-3, F-1, J-1, TN, H-1B1, and O-1). While the PM signals potential changes to the AOS process, the underlying statute remains unchanged and the PM may be subject to court challenge.

On Jan. 1, 2026, U.S. Citizenship and Immigration Services (USCIS) issued a new policy memorandum—PM-602-0194: Hold and Review of USCIS Benefit Applications Filed by Aliens From Additional High-Risk Countries—that has had wide-ranging effects on immigration benefit processing. This guidance builds on the expanded travel restrictions under Presidential Proclamation 10998 (PP 10998), Restricting and Limiting the Entry of Foreign Nationals to Protect the Security of the United States, signed on Dec. 16, 2025, and effective Jan. 1, 2026.

PM-602-0194 directs USCIS officers to take three main actions:

  1. Place a holdon all pending benefit applications, subject to certain exceptions and regardless of entry date, for nationals of the countries listed in PP 10998, pending a comprehensive review;
  2. Conduct a comprehensive review of all policies, procedures, and screening and vetting processes for benefits requests for nationals of countries listed in PP 10998; and
  3. Conduct a comprehensive re-review of approved benefit requests for nationals of countries listed in PP 10998 that were approved on or after Jan. 20, 2021.

Now that almost 60 days have passed since the announcement, applicants may be seeing the effects of the policy in delayed applications, and in some cases requests for additional evidence that USCIS might consider in determining whether to exercise favorable discretion.

Who Is Impacted?

The hold and comprehensive review now apply to nationals of all countries listed in PP 10998. This expanded list includes (among others):

  • Afghanistan
  • Angola
  • Antigua and Barbuda
  • Benin
  • Burkina Faso
  • Burma (Myanmar)
  • Chad
  • Côte d’Ivoire
  • Cuba
  • Dominica
  • Equatorial Guinea
  • Eritrea
  • Gabon
  • The Gambia
  • Haiti
  • Iran
  • Laos
  • Libya
  • Malawi
  • Mali
  • Mauritania
  • Niger
  • Nigeria
  • Senegal
  • Sierra Leone
  • Somalia
  • South Sudan
  • Sudan
  • Syria
  • Tanzania
  • Togo
  • Tonga
  • Turkmenistan
  • Venezuela
  • Yemen
  • Zambia
  • Zimbabwe

Individuals with Palestinian Authority–issued or endorsed travel documents are also included. This means the policy applies based on nationality, country of birth, or citizenship acquired through Citizenship-by-Investment (CBI) programs.

Exceptions

PM-602-0194 allows USCIS to continue adjudicating certain categories of benefit requests, including:

  • Individuals with a pending Form I-90, Form N-565, and Form N-600;
  • “Benefit requests that are a priority for law enforcement and where [Immigration and Customs Enforcement] has requested that USCIS take adjudicative action to uphold public safety or national security;”
  • Form I-765, categories(c)(11) for an alien paroled into the United States in the public interest or temporarily for emergency reasons and (c)(14) for an alien granted deferred action only when the request comes from law enforcement because the noncitizen is assisting law enforcement;
  • Initial Form I-765, category (c)(8) for an asylum applicant (with a pending asylum application) who filed for asylum on or after Jan. 4, 1995;
  • Benefit requests for individuals whose entry would serve a United States national interest;
  • Benefit requests for athletes or members of an athletic team, including the coaches, persons performing a necessary support role, and immediate relatives for the purpose of participating in the World Cup, Olympics, or other major sporting event as determined by the secretary of state;
  • Benefit requests, or associated underlying benefits, for any programs that are terminated or discontinued as a result of an executive order, proclamation, Federal Register notice, or directive issued by the president, the secretary of homeland security, or the USCIS director; and
  • Decisions to automatically terminate automatic or ancillary benefit requests related to when an individual is granted legal permanent resident status or becomes a naturalized citizen.

The exceptions to the policy are limited and may not apply to many applicants. Moreover, almost 60 days have passed since this policy was announced and there are no further updates as to when these applications may go back into normal processing. Without any meaningful update from USCIS, applicants from the affected countries may continue to experience significant delays and/or additional USCIS scrutiny in the adjudication of their cases, irrespective of whether the applicant or beneficiary is inside or outside the United States.