Last verified May 30, 2026. Immigration policy is changing rapidly. Before making any employment decision, confirm current conditions with a qualified immigration advisor.
Executive Summary
- On May 21, 2026, USCIS issued a policy memo directing officers to treat green card applications filed inside the US as a benefit granted only in extraordinary circumstances, not as a standard pathway available to all eligible applicants.
- Meeting all legal requirements for a green card is no longer sufficient on its own. USCIS officers will now weigh positive and negative factors in each case before deciding whether to approve or deny.
- This applies to most employment-based green card cases. It does not apply to refugee status, NACARA, HRIFA, or LRIF categories.
- H-1B and L-1 employees are not protected from this scrutiny simply because they hold dual intent visas.
- Following significant backlash, DHS issued a follow-up statement on May 30 clarifying that the policy "will have no noticeable impact on highly qualified applicants and skilled professionals who have followed the law." For most employer-sponsored employees, this is reassuring, but the underlying discretionary review mechanism is still in place.
- Legal challenges to the memo are expected. Further guidance targeting specific applicant groups is coming.
- No immediate action is required for most employees, but HR teams should understand what their employees are now facing and prepare for longer, less predictable timelines.
What changed
For decades, adjustment of status has been a standard pathway for foreign nationals already inside the US to apply for a green card without leaving the country. It is filed on Form I-485 and used by hundreds of thousands of people each year across employment, family, and diversity visa categories.
For a plain-language overview of the initial May 21 memo, see our earlier guide: USCIS Issues New Green Card Memo: What Actions to Take. This article reflects what has developed since, including the DHS clarification issued on May 30.
The May 21 memo reverses the presumption. USCIS now treats adjustment of status as an extraordinary benefit, with consular processing (applying at a US embassy or consulate abroad) as the default. An applicant who meets every legal requirement for a green card may still be denied adjustment of status if a USCIS officer determines the discretionary factors do not favor approving the application inside the US.
This is a significant change. It means that being eligible for a green card and being approved to receive it through adjustment of status are now two separate questions.
What DHS said nine days later
The initial memo triggered significant backlash from business groups, immigration lawyers, and employers. On May 30, 2026, DHS issued a follow-up statement seeking to narrow the scope of what the memo means in practice.
DHS said the policy "will not prevent any alien from obtaining a green card who legitimately and properly qualify" and characterized the memo as restating "longstanding law and policy." Most notably for employers, DHS stated that the policy "will have no noticeable impact on highly qualified applicants and skilled professionals who have followed the law."
That framing is a meaningful signal. It suggests that employment-based applicants with clean compliance records and ongoing employer sponsorship are not the intended target of the policy.
That said, the underlying mechanism has not changed. Lynden Melmed, who served as the top lawyer at USCIS under the George W. Bush administration, noted that the guidance will still prove "burdensome" for applicants and their attorneys, who will need to submit more evidence to demonstrate why their case should not be processed at a consulate. He also observed that the conflicting signals from the administration have created confusion among USCIS officers themselves, which introduces unpredictability regardless of what DHS says publicly.
The practical read: the severity of the original memo has been walked back, but the discretionary review framework is still in place. Employer-sponsored employees with strong compliance histories are likely to be fine. Cases with any complications, including gaps in status, prior visa issues, or prior unlawful presence, face more scrutiny than before.
Who is and is not affected
The new policy applies to most adjustment of status filings, including employment-based, family-based, and diversity visa categories.
It does not apply to certain non-discretionary categories where USCIS is required by law to approve the application if the applicant meets the requirements. Those exempt categories are: refugee status, the Nicaraguan Adjustment and Central American Relief Act (NACARA), the Haitian Refugee Immigration Fairness Act (HRIFA), and the Liberian Refugee Immigration Fairness (LRIF) law.
For HR teams at US employers: the employees most likely to be affected are those on H-1B, L-1, O-1, TN, and similar employment-based nonimmigrant visas with pending or upcoming I-485 filings.
What USCIS will now weigh
Under the new policy, USCIS officers will consider both positive and negative factors in each case. The positive factors include: immigration history and compliance with visa terms, family ties in the US, moral character, length of lawful residence, and the skills, employment record, or community contributions the applicant brings.
Officers will also likely ask why the applicant cannot process at a consulate, what factors prevent consular processing, whether the applicant has family ties abroad, and whether the applicant returned to their home country after any period of authorized stay expired.
The list of negative factors has not been published in full. USCIS has indicated it will issue additional guidance targeting specific groups of applicants, which suggests the framework will continue to evolve.
The dual intent nuance
Many sponsored employees hold H-1B or L-1 visas, both of which are recognized as "dual intent" visa categories. Dual intent means the visa holder is permitted to pursue permanent residence while maintaining temporary status. The new memo acknowledges this.
However, it explicitly states that being in a dual intent category alone is not enough to guarantee approval of an adjustment of status application. Holding an H-1B or L-1 visa does not exempt an employee from the new discretionary review.
If an employee is redirected to consular processing
If USCIS denies adjustment of status or an employee chooses to withdraw and apply at a consulate, here is what that process looks like operationally.
The employee must be physically present in their home country. Consular processing happens at a US embassy or consulate in the applicant's country of nationality (or country of last residence in some cases). The employee would need to leave the US, relocate temporarily, and attend an in-person interview abroad.
The steps involved. After USCIS approves the underlying immigrant petition (the I-140 for employment-based cases), the case is transferred to the National Visa Center (NVC). The NVC collects required documents and fees, then schedules an interview at the relevant US consulate. The applicant completes a medical examination with a consulate-approved physician, attends the interview, and if approved, receives an immigrant visa stamp. They then enter the US on that visa and are admitted as a permanent resident.
Most of the preparation can happen while the employee is still in the US. The DS-260 immigrant visa application, NVC document submission, and appointment booking can all be completed before the employee leaves. The employee only needs to be physically present in their home country for the medical exam, the interview itself, and any waiting period before the visa is issued. With good planning, the actual time abroad could be a matter of weeks rather than months.
The main variable is appointment availability. At high-demand consulates, scheduling an immigrant visa interview can take months. The employee does not need to be abroad during that wait. They can book the appointment and only travel when the date is approaching. However, if appointments are scarce or the consulate backlog worsens as more applicants are redirected from AOS to consular processing, the lead time for planning will increase. HR teams should factor that scheduling uncertainty into any operational planning.
What happens to the employee's work authorization while they are abroad. An employee who departs the US while on H-1B status is no longer working in the US. The employer will need to decide how to handle the employment relationship during that period. This is not straightforward and requires coordination between HR, the employee, and immigration counsel.
What happens to the H-1B. The H-1B approval does not automatically expire because the employee is abroad. However, if the employee is not working in the US during this period, the employer and counsel should confirm the status of the H-1B and what obligations that creates. There may also be implications for the prevailing wage and the labor condition application underlying the H-1B.
The practical HR implication. If consular processing becomes a realistic outcome for any of your sponsored employees, it should be treated as an operational planning issue, not just an immigration issue. That means understanding which roles could accommodate an extended absence, what the visa timeline looks like for that specific consulate, and what the employment status of the employee is while they are waiting. Immigration counsel should be involved well in advance.
International travel with a pending AOS
Employees frequently ask whether they can travel internationally while an I-485 is pending. The answer involves two separate questions: re-entry into the US, and the risk to the AOS application itself.
Re-entry. An employee with a valid H-1B visa stamp should be readmitted at the port of entry. H-1B is a dual intent visa and a valid work authorization visa. If sent to secondary inspection, it would be for a reason unrelated to the pending AOS. The USCIS memo concerns internal adjudication and does not change what happens at the border.
Risk of abandonment. Traveling outside the US while an I-485 is pending without an Advance Parole (AP) travel document can result in the AOS application being considered abandoned. Having a valid H-1B stamp allows re-entry, but it does not protect the pending I-485 from abandonment. Before any employee with a pending AOS application travels internationally, confirm whether they have a valid AP document in hand.
Wait until the I-485 is receipted. Employees should not depart the US before their I-485 receipt notice has been issued. Filing and departing before receiving the receipt creates additional risk.
Avoid extended absences. Employees with a pending AOS should avoid being outside the US for more than six months.
Standard guidance for all foreign national employees traveling internationally: carry the original visa approval notice and a current employment verification letter confirming ongoing US employment.
One scenario that has not been specifically addressed in guidance: what happens if the green card is approved while the employee is abroad. Employees expecting an imminent approval decision should consult immigration counsel before booking international travel.
What HR should do now
Do not make decisions based on early reporting. The memo is real. The full scope of its implementation is not yet defined. USCIS has signaled more guidance is coming, and legal challenges are expected. Making decisions about employee immigration plans before there is further clarity creates unnecessary disruption.
Know which employees are affected. Employment-based employees with pending I-485 applications are in scope. Employees on refugee-based, NACARA, HRIFA, or LRIF pathways are not. Confirm the category with your immigration provider if you are unsure.
Prepare employees for more questions. Employees with pending I-485 filings may receive additional requests from USCIS asking about their reasons for not processing at a consulate, their ties to their home country, and their compliance history. This is not automatically a problem, but employees should be prepared for it and should have counsel available to respond.
Do not alter hiring plans. This memo does not affect nonimmigrant work visas or the initial stages of employment-based sponsorship. H-1B, TN, O-1, and similar visa categories are unaffected. The I-485 stage typically comes three to five years or more after an employee begins working with you, and longer for employees from countries with significant priority date backlogs.
Maintain current timelines. For employees with pending I-485 filings, continue as planned unless your immigration counsel advises otherwise.
Frequently asked questions
Does this mean our employees' green card applications will be denied? Not necessarily. It means the approval process now involves a discretionary assessment that was not previously required. Employees with strong immigration compliance records and stable employment history are generally well-positioned. No one should assume their case is at risk without speaking to their immigration attorney.
Can our employees with pending I-485 filings still travel internationally? Only if they have a valid Advance Parole (AP) travel document. Traveling outside the US without AP while an I-485 is pending can result in the application being considered abandoned. Having a valid H-1B visa stamp allows re-entry, but it does not protect the pending I-485 from abandonment.
Confirm whether the employee has AP in hand before they depart. Employees should also wait until the I-485 receipt notice has been issued before traveling, and should avoid being outside the US for more than six months.
Could a CBP officer deny re-entry because of a pending AOS? No, not on that basis alone. An employee with a valid H-1B visa stamp should be admitted at the port of entry. If sent to secondary inspection, it would be for a separate reason.
The USCIS memo concerns internal adjudication, not border entry. The risk of traveling with a pending AOS is to the application itself, not to re-entry.
What should employees carry when traveling internationally with a pending AOS? The same documentation recommended for all foreign national employees: the original visa approval notice and a current employment verification letter confirming ongoing US employment. If questioned at secondary inspection, these documents establish that active employment and status are intact.
What if my employee's green card is approved while they are abroad? This scenario has not been specifically addressed in guidance yet. Employees who may receive an approval decision soon should consult immigration counsel before booking international travel.
What about employees who have not yet started the green card process? Nothing changes at the point of hiring or early sponsorship. Work visa categories are unaffected. The new policy applies at the I-485 stage, which is typically years into the process.
Does this affect employees from countries with long priority date backlogs? The policy applies regardless of nationality. For employees from India or China, where employment-based priority date backlogs run 10 to 20 years or more, the I-485 stage is still far in the future for most. But the policy will be in effect when they reach it.
How WayLit helps
WayLit's immigration practitioners are monitoring this policy closely. For clients managing sponsored employees through WayLit, no immediate changes to your active cases are needed at this time.
For HR teams working through this independently, the most important thing right now is not to act on incomplete information. The practical impact of this policy will become clearer as USCIS issues additional guidance and legal challenges move forward.
WayLit works directly with HR teams to track developments like this and provide specific, actionable guidance when the situation warrants it. For questions about specific employee situations, contact support@waylit.com.
This article is for informational purposes only and does not constitute legal advice. Consult qualified immigration counsel before making decisions about your sponsored workforce.
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