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 them. The policy memo sought to overturn 73 years of decided law and two federal statutes through a memorandum, rather than following any set law or even the Administrative Procedures Act.
Ever since learning about this policy memorandum, I was deeply concerned about its legitimacy and effects as it declared Adjustment Of Status to be an “extraordinary relief” and that most people would be required to return to their countries of origin and process their adjustments of status from there.
Adjustment of Status is a typical procedure, particularly for the foreign-born spouse of a United States Citizen. After a legal marriage to a United States Citizen, the spouse can file a petition to be recognized as an immediate relative of that citizen, and also to adjust his or her status to that of a temporary permanent resident. American Dream has assisted a great many clients in this vital transition.
Attempting to change the rules for adjustment by policy memo contradicts the Due Process clause of the U.S. constitution as well as well-settled federal law. The memo states that overstaying a temporary visa is unlawful and should be counted as a negative factor in a USCIS officer’s decision to grant or deny a change of status to the spouse of a U.S. citizen or legal permanent resident. This is in fact contrary to federal law and congressional intent. By law, such a person’s status may be adjusted if he is the immediate relative of a U.S. citizen or the immediate relative of a legal permanent resident if there is a visa available to him, and there is no limit on the number of visas than can be issued to the immediate relatives of U.S. citizens even if those persons are out of immigration status or have worked without employment authorization. See 8 U.S.C. § 1255(a), (c)(2), 8 C.F.R. § 245.1, 8 C.F.R. § 245.1, and 8 U.S.C. § 1255(c)(2).
However, the policy memo declares a “preference for aliens seeking to immigrate through the ordinary immigration process from abroad through consular processing.” PM-602-0199.
By law, “General notice of proposed rule making shall be published in the Federal Register” and, after notice, “the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments.” 5 U.S.C. § 553. This policy memorandum suggests a rule, “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”, yet affected persons were never given an opportunity to comment on the suggested rule, or even advance notice of what it proposed.
“An alien’s failure to comply with the conditions of their nonimmigrant admission or parole and an alien’s failure to depart as expected are highly relevant to . . .” the discretionary analysis of that person’s desire to adjust status as the immediate relative of a U.S. Citizen. PM-602-0199. However, the federal law specifically states that overstaying a temporary visa is legally irrelevant for the immediate relative of a U.S. Citizen. See 8 U.S.C. § 1255(a), (c)(2), 8 C.F.R. § 245.1, 8 C.F.R. § 245.1.
In other words, the Policy Memo instructs USCIS agents to disregard federal law and count visa overstays against immediate relatives of U.S. citizens attempting to adjust their status to that of a Legal Permanent Resident!
If immediate relatives disregarded the written federal law and returned to their countries of origin for Consular processing, they would also be forced in many cases to abandon their spouses or even U.S. citizen children. Additionally, especially considering Executive Orders 13769 and 13780 (both of which were in force at the time of this memo) which limit or ban entry into the United States for citizens of 32 different nations, it may not be legally possible for the spouse of a U.S. citizen to seek consular processing.
Considering the multiple extreme legal issues with the Policy Memorandum, the Department of Homeland Security attempted to ‘clarify’ (retract) much of it on May 30, 2026. https://www.cbsnews.com/news/trump-administration-appears-to-downplay-impact-of-green-card-policy-changes/. However, at this time, it appears that both the American Civil Liberties Union (“ACLU”) and the American Immigration Attorneys’ Association (“AILA”) intend to pursue legal remedies to address this administration’s radical legal overreach. Congress had seventy-three (73) years in which it declined to eliminate or severely restrict the USCIS from allowing immediate relatives of U.S. citizens to adjust their status. No administration or agency may change the essence of federal laws via policy memo!
First successful interview after the new USCIS policy memo
It’s not the first time I thought I was losing my mind, but it was about the most annoyed I had been with myself about it. I’ve been working immigration cases for some time, and I am used to the United States Citizenship and Immigration Service (“USCIS”) returning filings or asking for unreasonable evidence. But in this case it really made me wonder.
I had another case in which a filing had been illegitimately denied FOUR TIMES, in which case both marriage partners are persons of color. Another case, in which the couple lived literally blocks from M. and S. and that wife was also a nurse, just like M., had been accepted the very first time. Both spouses are white. I personally examine and verify every form we file, so it wasn’t a question of incorrect form completion in either rejected case. At this point I gave in to my bizarre suspicions of racism and decided to do a factual analysis comparing cases.
The spreadsheet told me what I had been so loathe to believe: statistically, race did matter. I could predict which filings would be rejected based upon the amount of melanin in a person’s skin in his/her passport photos.
I cannot even express how angry the racial profiling of my clients makes me. My clients who lived right near their neighbor and got through USCIS with no issues are white (Couple A). My clients who had to send in their filing four times are people of color (Couple B). (Both women are registered nurses.) But it’s even worse than that. The foreign- born husband in Couple A is a delightful person, but was a trained soldier. We revealed that on his forms. No problems. The foreign-born husband of Couple B is also a terrific person, and was in legal status at the time we filed his forms. The USCIS chose to reject and/or question Couple B’s filing FOUR times! Here is our exact scenario:
- 1st filing: USCIS rejected it, falsely claiming that there was no form I-485.
- 2nd filing: IUSCIS sent a Request For Evidence (“RFE”), asking for the USC wife’s forms W-2 for the most recent year
- This was an unlawful request: “The form instructions have the same force as a regulation . . . .” USCIS Policy Manual, 7, A, 3. However, the instructions for form I-864EZ do not require the filer to submit “W-2s and/or 1099-Rs submitted to the Internal Revenue Service”. Contra instructions for form I-864EZ. In fact, the form states that “You must provide either an IRS transcript or a photocopy from your own records of your Federal individual income tax return for the most recent tax year,” which we had already done. (No mention is made of forms W-2 or 1099 in the instructions.)
- 3rd filing: USCIS rejected the filing again, stating that the payment amount did not match the required amount and that the application type was not chosen in for I-485. In fact, UCSIS issued receipts for forms I-130 and I-485 and withdrew funds for the filing of forms from the couple’s Credit Union Account on January 17th. And of course the form was properly filled in! I’ve done this a few times before . . .
- 4th filing – no way were my clients going to pay for their filing a second time! At last the USCIS sent them a notice to appear at an application service center in California on May 27, 2027.
This was our first interview following the disastrous USCIS policy memorandum issued on May 22, 2026, in which the USCIS stated that persons pursuing adjustment of status within the United States must instead seek adjustment of status through Consular Processing in their countries of origin in almost all circumstances. (https://www.uscis.gov/newsroom/news-releases/us-citizenship-and-immigration-services-will-grant-adjustment-of-status-only-in-extraordinary.) The USCIS policy memorandum declared Adjustment of Status within the United States to be an “extraordinary form of relief.”
At their interview on May 27th, the couple knew the moment that they entered the interview room that there was going to be a problem. Their interviewer was a new American himself, yet he told this couple that they should have brought their own interpreter or translator. The wife is a United States citizen registered nurse and speaks perfect English in every way, as well as speaking the first language of her husband. Additionally, her husband speaks perfectly adequate English. Both members of the couple believed that the interviewer was spoiling for a fight before anyone said a word. The couple were required to bring copies of all of the documents that they had filed with their petitions as evidence, but the interviewer would not review any of them (all were in his possession in the first place).
The wife explained that they had been forced to file four times, and this interviewer called her a ‘liar.’ In fact, we have proof that the couple had to file four times to get this interview.
After an extremely unpleasant interview, the interviewer gave the couple a ‘Notice of Interview Results’, which said that USCIS was unable to complete their case at that time, and that it was being continued/held for review. This news was very distressing to my clients after all that they had been through!
The husband telephoned me and asked if I could appear at their next interview as the token white person. I would gladly have done so, but I am quite distant from California. Also, had I been there, I would have been bellowing for a supervisor and worked very hard to be sure that this person lost his job, for which he was obviously unqualified and unsuited.
Fortunately, their interviewer must have reconsidered his decision, because the wife found a notice of approval for form I-485 in her USCIS account on the evening of May 30th. So we have reason to believe that the husband will get his green card shortly!
The moral of this story? Persistence pays off in immigration cases.
No matter how many times it takes, we will keep insisting that the USCIS gives you benefits to which you are entitled.
Temporary Green Cards
If you adjusted your status because you are married, you received a green card that was good for only 24 months. A standard green card is good for 10 years. Why did we get you the limited one? Because we had no choice. The temporary green card, good for just twenty-four (24) months, is what one will always receive when adjusting status following a marriage. It was not possible to get a permanent green card for you. So, are you done? NO!!
You can remove the conditions on your green card by filing form I-751, Petition to Remove the Conditions of Residence, with the USCIS. You can file as early as 90 days before your conditional green card expires, which you should do: the form can take 18 to 30 months or MORE to adjudicate!! Legally, the receipt for your I-751 filing should serve to protect you from removal from the United States for 48 months beyond the expiration date shown on your temporary green card. We recommend that you file on time (or have us do so for you) and carry that receipt with you at all times.
What if you and your U.S. Spouse are divorced or separated? We can still file form I-751 with proof that you entered into the marriage in good faith and your removal from the U.S. would result in extreme hardship.
If you do not file and have nothing but your expired green card, you will be out of status and can be removed from the United States!
You may be able to file a form I-751 on your own, with no attorney. Your children born overseas are subject to the same limitations. We offer services to prove that your marriage was bona fide and to get your ‘permanent’ green card.
Whatever you decide to do, get it done and keep your receipt with you!
What a Legal Permanent Resident Cannot Do
People with a legal permanent residency (green card) can do a lot. By law, they can travel outside the United States, work, or even start a business. But there are a few things that they cannot do.
If you are not a U.S. Citizen, you must not:
- Vote in federal elections;
- Serve on a jury;
- Hold an elected office;
- Hold certain federal jobs (usually those requiring U.S. security clearance)
- Obtain certain licenses (might require citizenship for aviation or maritime licenses);
- Remain outside the U.S. more than 180 days (there will be a presumption that you have abandoned your LPR status); or
- Ever claim to be a U.S. Citizen!
You must:
- Alert the USCIS of any and every physical move. Check out the information here: https://www.uscis.gov/addresschange.
There are reports of legal permanent residents who are in status and have no re-entry bans experiencing difficulty in returning to the United States. For this reason, we recommend that Legal Permanent Residents restrict their travel to necessary trips only, at least under this xenophobic administration.
A Blow to Bad Law
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!