U.S. Green Card Process Just Got More Complicated

Immigration attorney Yossel Balisok says new USCIS guidance could make green card approvals harder to secure and raises new concerns for those applying from inside the U.S.

By Joseph “Yossel” Balisok, Esq., Balisok & Kaufman PLLC
(This article is for general information only and is not legal advice)

On May 21, 2026, U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum — PM-602-0199 — with a title only a bureaucrat could love: “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.”

Behind that mouthful is a shift that should get the attention of every family in our community with a green card case in progress, or even on the horizon. The day after the memo, a USCIS spokesman put it in plain English for reporters: someone in the United States temporarily who wants a green card should generally expect to return to their home country to apply for it — except in extraordinary circumstances.

For thousands of families who are doing everything by the book — who entered legally, who have a U.S.-citizen spouse or child, who filed their paperwork and have been waiting patiently — that sentence landed hard. We have spent the last two weeks fielding worried phone calls. This article is our attempt to explain, carefully and honestly, what actually changed, what did not, and what you should do about it.

First, what “adjustment of status” even means
“Adjustment of status” is the process that lets someone already inside the United States apply for a green card without leaving the country. It is the path most spouses and close relatives of U.S. citizens use. The alternative — “consular processing” — means applying at a U.S. embassy or consulate abroad, which often requires leaving the country and waiting outside it, sometimes for a long time, sometimes with no guarantee of getting back in.
For decades, adjusting status from inside the U.S. has been the normal, expected route for people already here lawfully. The new memo is an effort to reframe it as the exception rather than the rule.

What the memo actually does — and what it does not

Here is the part the scary headlines leave out, and it matters: the memo does not change the law. It does not repeal Section 245 of the Immigration and Nationality Act, the statute that authorizes in-country green card applications. It does not add new eligibility requirements. If you qualified for adjustment of status before May 21, you still qualify on paper today.

What changed is how officers are told to use their discretion. Adjustment of status has always technically been “discretionary” — meaning an officer could say no even to someone who met every requirement. But in practice, for clean cases, that discretion rarely came into play. This memo is, in effect, an instruction to officers to make discretion bite: to treat the question “should we grant this as a matter of grace?” as a live, decisive issue in every case, rather than a formality.

One narrow but important caveat: not every green card adjustment is discretionary. A handful of categories — such as refugee and asylee adjustments under Section 209, and certain VAWA, NACARA, and HRIFA cases — are non-discretionary, meaning USCIS must approve them once the requirements are met, full stop. But the ordinary family- and employment-based applications that most of our community files are discretionary, and those are squarely what this memo targets.

The memo borrows old court language to do it. It describes adjustment as “extraordinary,” as an “act of administrative grace,” and it revives a 1974 standard requiring applicants to show “unusual or even outstanding equities” to overcome negative factors. Crucially, it states that simply having no negative factors is not enough — you now have to affirmatively prove why you deserve a yes.

One more honest note: the phrase “only in extraordinary circumstances” that made all the headlines does not appear in the body of the memo. That came from the agency’s press release and a spokesman’s comment to reporters — a political framing, not the operative legal text. The text itself is more measured. That distinction will matter a great deal when this memo is challenged in court, as nearly every immigration attorney expects it to be.

Why it feels like lawful immigrants are being treated like violators
This is the heart of what has upset our community, and it is a fair concern. The memo singles out, as a negative discretionary factor, the very thing that millions of lawfully admitted people have done: they came on a temporary visa or parole, and then — rather than going home — they pursued a green card from inside the country.
Read the memo closely and you see the logic: Congress expects people admitted temporarily to leave when their purpose is done. Choosing to stay and adjust, the memo says, “contravenes these Congressional expectations.” So conduct that was once ordinary and accepted — staying to marry, to work, to build a life, and then filing for a green card here — is now something an officer can hold against you.

That is why people feel the ground has shifted under them. You can have followed every rule and still find your decision to remain treated as a strike against you. It does not literally turn lawful residents into “illegal immigrants” — your status is what it is — but it does mean that lawful presence alone no longer buys you the benefit of the doubt it once did.
The memo does carve out important exceptions. It acknowledges “dual intent” visa categories (such as H-1B), where holding a temporary visa and pursuing a green card is perfectly proper, and it acknowledges situations where adjustment is the only available path. But — and this is a warning, not a reassurance — it also says that simply holding a dual-intent status is not, by itself, enough to earn a favorable decision.

The real danger: overstaying

If you take one thing from this article, take this. Overstaying your authorized period of stay has never been more dangerous than it is right now.

Why this hits married couples hardest. For years, the most forgiving path in all of immigration law belonged to the foreign spouse of a U.S. citizen. If that spouse had entered the country lawfully — on a tourist visa, a student visa, a work visa — and then overstayed, it almost didn’t matter for green card purposes. Congress specifically exempted “immediate relatives” of U.S. citizens (spouses, parents, and minor children) from the statutory bars that block most other overstayers from adjusting status. In plain terms: a couple could marry, the foreign spouse’s visa could have lapsed long ago, and they could still confidently expect to obtain a green card through adjustment of status without leaving the country. The overstay was forgiven by law.

That statutory forgiveness has not been repealed — and that is the part people misunderstand. The exemption protects a couple at the eligibility stage; it says nothing about the discretion stage. PM-602-0199 attacks the same overstay from that second direction. An officer can now look at the very overstay that Congress chose to forgive and count it against the couple as a negative factor in deciding whether to grant the green card as a matter of “grace.” One of the strongest arguments against the memo is exactly this — that USCIS is punishing at the discretion stage the conduct Congress deliberately declined to punish at the eligibility stage — but until a court says otherwise, that is the risk on the table.

The practical upshot for married couples is blunt: the old assumption — “we’re married to a citizen, so the overstay won’t matter” — is no longer safe. It may still work out, especially for couples with clean records and strong ties, but it is no longer something to count on. This is a serious problem, and the single most important thing a couple can do about it is to avoid letting status lapse in the first place.

So the broader principle holds for everyone, not just spouses: even where Congress chose not to bar you, an officer can now weigh your overstay, your lapse in status, or any period of unauthorized work as a negative factor and deny your case on discretion alone.

Officers are reportedly already asking applicants at interviews questions like: Why did you stay after your status expired? Why are you applying here instead of from abroad? What ties do you still have to your home country? An unconvincing answer to those questions can now sink an otherwise eligible case.

And the consequences of a denial are severe. A discretionary denial generally cannot be appealed. If you are out of status when it happens, USCIS can place you in removal proceedings. If you have children on your application, a denial can jeopardize the age protections that keep them eligible. The cost of getting this wrong has gone up sharply.

So: do not let your nonimmigrant status lapse if you can avoid it. Do not work without authorization. Do not assume that “I’m an immediate relative, I’m covered” protects you the way it used to. And do not travel internationally with a pending case without talking to a lawyer first.

What you should do now

If you already have a case pending: Do not panic and do not withdraw it. There is no reason to abandon a filed application because of this memo. Expect possible delays and a higher chance of a Request for Evidence (RFE) or a Notice of Intent to Deny. If one arrives, respond fully, promptly, and with counsel.

If you are eligible but have not filed yet: For most people, the advice from the immigration bar is to move forward rather than wait — the standard is not getting easier, and USCIS has signaled more category-specific guidance may be coming. But file strong. The era of the bare-bones application is over.

For everyone, build the positive case into the filing itself. Do not leave an officer to fill in the blanks unfavorably. Gather and submit:
• Evidence of your family relationships and the hardship separation would cause;
• Tax returns, pay stubs, and proof of lawful work;
• A clean record of your immigration history;
• Letters from employers, neighbors, shuls, and community organizations;
• A clear written explanation of your ties to this country.

Under this memo, the absence of bad facts is not enough — you must show the good ones.

The bottom line
PM-602-0199 did not rewrite the law, and it is very likely headed for court. But it has already changed the climate in which real decisions are being made about real families. The cases that win under it will be the ones that are prepared deliberately, documented thoroughly, and presented as the meritorious cases the memo says it is looking for.

If you or someone in your family has a green card case in progress, is thinking about filing, or — especially — is at risk of falling out of status, please do not wait to get advice. The margin for error has narrowed, and the time to build your strongest possible case is before you file, not after a denial.

Balisok & Kaufman PLLC is a Crown Heights–based immigration law practice serving our community. To discuss your situation confidentially, contact us at 718-928-9607 or joseph@lawbalisok.com.
This article is attorney advertising and is provided for general informational purposes only. It is not legal advice and does not create an attorney-client relationship. Every immigration case is different; consult a licensed attorney about your specific circumstances.

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