For 73 years, since 1952, spouses of U.S. citizens have been able to adjust their immigration status within the United States if a) they were an immediate relative of a U.S. citizen, b)an immigrant visa is immediately available to them, and c) they had originally entered the United States legally with inspection (usually a visitor’s visa or student visa). Overstaying the original date or intent of the visa is legally irrelevant, as is working without authorization.
“A United States citizen may file a petition on behalf of a spouse… The petition must be accompanied by proof of the petitioner’s United States citizenship and proof of the relationship.” 8 C.F.R. § 204.2(a)(1)(i)(A). And “[a]ny alien who is physically present in the United States . . . may apply for adjustment of status to that of a lawful permanent resident of the United States if the applicant is eligible to receive an immigrant visa and an immigrant visa is immediately available at the time of filing of the application. 8 U.S.C. § 245.1. An applicant for adjustment of status is eligible “[I]n the discretion of the [Secretary of Homeland Security].” 8 USC § 1255(a).
On May 22, 2026, the United States Citizenship and Immigration Service released a policy memorandum that sent massive shockwaves throughout the immigrant community and attorneys who serve it. The policy memo sought to overturn 73 years of decided law and the two federal statutes above through a memorandum, rather than following any set law or even the Administrative Procedures Act. This travesty is yet to be argued in the courts, although but the American Immigration Lawyers Association (“AILA”) and the American Civil Liberties Union intend to do so.
In previous instance of bad law, the current administration decided arbitrarily that it would ‘pause’ asylum decisions to all citizens of 39 different nations based upon the egregious murder of two (2) US National Guard members in Washington D.C. on November 26, 2025. The prime suspect was an Afghan national. Nevertheless, Executive Proclamation 10949 directed the U.S. Government to restrict and limit the entry of nationals of thirty-nine (39) different countries to the United States as well as freezing their work permit, legal permanent residency, and citizenship applications. Additionally, the USCIS was instructed to consider origin from any of these nations to be a “significant negative factor” in considering any of these benefit applications.
On June 5, 2026, U.S. District Chief Judge John McConnell Jr. struck down this policy, declaring, “ [T]he rule of law has to apply to everyone equally and, as evident here, USCIS has neither ‘followed the law’ nor ‘done things the right way.’ Indeed, the agency has violated the very immigration laws that Congress has charged it with administering, as well as the administrative laws that govern the agency’s actions. In enacting its latest immigration policies, USCIS: claims statutory and regulatory authority that it does not possess; makes decisions without the reasoned explanations that it must provide; acts without regard for the reliance interests of applicants that it must consider; and justifies its actions with pretextual concerns of ‘national security’ that mask anti-immigrant sentiments that it is forbidden from letting influence its decision-making. In legal terms that means USCIS’s actions are contrary to law and arbitrary and capricious.”
“[E]ach of the Challenged Policies that USCIS enacted—the Benefits Hold Policy, the Global Asylum Hold Policy, the Comprehensive Re-Review Policy, and the Country-Specific Factors Policy—are declared unlawful and are vacated and set aside.” Dorcas Int’l Inst. of R.I. v. U.S. Citizenship & Immigr. Servs., No. 1:26-cv-00132-JJM-PAS, 2026 WL _______ (D.R.I. June 5, 2026) (emphasis added).
As it did with these immigration policies based upon Presidential orders, “has [USCIS] violated the very immigration laws that Congress has charged it with administering, as well as the administrative laws that govern the agency’s actions. . . .” Dorcas Int’l Inst. of R.I. v. U.S. Citizenship & Immigr. Servs., No. 1:26-cv-00132-JJM-PAS, 2026 WL _______ (D.R.I. June 5, 2026) in declaring via policy memo that immediate relatives of U.S. Citizens are not to adjust their immigration status within the United States? This author and most of the immigration attorney community strongly suspects that it has, and that the arbitrary instructions that the immediate relatives of U.S. citizens should tear their families apart and return to their native countries to adjust their immigration status will be overturned in a court of law as the arbitrary, capricious, and cruel anti-immigrant policy that it is. Once again, the USCIS “has neither ‘followed the law’ nor ‘done things the right way.’” Dorcas Int’l Inst. of R.I. v. U.S. Citizenship & Immigr. Servs., No. 1:26-cv-00132-JJM-PAS, 2026 WL _______ (D.R.I. June 5, 2026).
Therefore I reiterate my advice to foreign born spouses of U.S. citizens: do not abandon your spouse based upon what you see in social media! It can still be very possible to adjust your status from within the United States!