USCIS Raised the Bar on Adjustment of Status

Here’s What Employers Must Do Now.

On May 22, 2026, USCIS issued Policy Memorandum PM-620-1099, formally recharacterizing Adjustment of Status (AOS) as “extraordinary relief that permits applicants to dispense with the ordinary consular visa process.” This is a significant departure from decades of existing practice.

Under the new policy, USCIS officers are now required to conduct a totality-of-the-circumstances analysis for all I-485 applications filed under INA Section 245 in which the applicant could seek an immigrant visa abroad. Officers weigh adverse factors against positive ones, and the memo is explicit: the mere absence of negative factors is not enough to warrant approval.

This checklist from Gunn-Menefee guides you on what to do.

Employer Action Checklist: AOS Under the New USCIS Policy

Audit Your Workforce First

• Identify all employees with pending I-485 applications who are working solely on an AOS-based Employment Authorization Document (EAD) and have not maintained a separate nonimmigrant status.
• Flag employees whose I-485 was filed under INA 245(k) — these cases carry elevated discretionary risk under the new policy.
• Flag any employee with an arrest record or criminal history, as these are specifically identified as high-risk cases.
• Evaluate Nonimmigrant Status Risks 
• Review the nonimmigrant visa category for each sponsored employee with a pending I-485. Employees in B-1/B-2, F-1, E-3, O-1, R-1, or TN status with pending AOS applications face heightened risk because these categories carry strict nonimmigrant intent requirements.
• Consult immigration counsel about changing affected employees to a dual-intent nonimmigrant status (such as H-1B) before the I-485 is adjudicated, if possible.

Understand that if an AOS application is denied and the employee is not maintaining non-immigrant status, removal proceedings may be initiated.

Strengthen Each Pending or In-Preparation Case

• For employees who have not yet filed their I-485, prepare a discretionary package documenting positive factors. USCIS considers: 

• • Employer sponsorship letters documenting specialized skills and economic contribution 
  • Evidence of long-term lawful presence and employment history 
  • Tax records and civic involvement 
  • Evidence of U.S. family ties (particularly where separation would cause hardship)
• Prepare employees with pending I-485s for potential RFEs or interviews, asking why they chose AOS over consular processing and whether any factors would prevent them from processing abroad.

Review Petition Strategy on New Cases

• When filing new I-130 or I-140 petitions, consult with counsel about whether to indicate “immigrant visa processing” to preserve flexibility — this avoids the need to file an I-824 if the beneficiary later decides to pursue consular processing.
• If dependents are included, assess Child Status Protection Act (CSPA) implications. A denied I-485 (not renewed in removal proceedings) could cause a child to age out and lose eligibility for derivative status.

Know the Contingency Plan

• Understand that AOS denials cannot be appealed — options are limited to a Motion to Reopen or Motion to Reconsider, or an Administrative Procedures Act (APA) claim.
• If an employee may be subject to an unlawful presence bar after a denial, begin gathering documentation for an I-601A waiver now. Processing times currently run approximately two years.

The Practical Impact

The new policy does not categorically deny all I-485 applications. USCIS has confirmed that officers will not automatically reject AOS filings. However, the standard has shifted, and employer-sponsored cases must now affirmatively demonstrate why AOS — rather than consular processing — is appropriate.

Employer sponsorship letters, evidence of specialized skills, and documentation of economic benefit to the United States are now explicitly listed as positive discretionary factors. Employers who proactively document their cases are better positioned under this new framework.

If your company sponsors employees through Adjustment of Status, now is the time to review your caseload and documentation strategy. Contact Gunn-Menefee Immigration Lawyers at (502) 236-9900  to discuss how this AOS Policy Memorandum affects your immigration program.