We hope this newsletter finds you well. In this edition, we bring you important updates on various immigration matters. Please take a moment to review the following key highlights:
USCIS Reframes Adjustment of Status as Extraordinary Relief — What Every Green Card Applicant Must Know Now
A sweeping USCIS policy memo issued May 22, 2026 recharacterizes domestic green card adjustment as a discretionary, exceptional remedy — not a routine right. Here is what the guidance actually says, who it affects, and what applicants must do to protect their cases.
BY KESHAB RAJ SEADIE, ESQ. | MANAGING ATTORNEY, GREENCARDMAKER.COM
U.S. Citizenship and Immigration Services has issued a landmark policy memorandum directing its officers to treat adjustment of status — the process by which a foreign national already inside the United States applies for a green card without leaving — as a discretionary form of extraordinary relief. Released on May 22, 2026, the directive marks one of the most consequential shifts in domestic green card practice in a generation. But contrary to widespread alarm in the media, adjustment of status has not been eliminated. Understanding precisely what the guidance does — and does not — say is now essential for every applicant and employer in the immigration pipeline.
Setting the Record Straight:
Adjustment of status remains an accessible and legally available pathway to permanent residence. The new agency guidance does not prohibit foreign nationals from filing Form I-485, and it does not restrict USCIS officers from approving adjustment applications. What it does is raise the evidentiary bar and reframe the officer’s lens: approval is now characterized as a favorable exercise of discretion, not a ministerial step in a predictable process.
What the Policy Memo Actually Says:
The memorandum instructs USCIS officers to review the full facts of each adjustment case and determine — based on the totality of circumstances — whether the applicant warrants approval in the United States, or whether the applicant should instead be directed to pursue permanent residence through consular processing at a U.S. embassy or consulate abroad. Officers are to balance positive factors against negative factors and make an individualized determination for every case.
While USCIS has always possessed statutory discretion under INA § 245, the agency’s renewed emphasis on consular processing abroad as the default pathway — and its explicit characterization of domestic adjustment as a grant of “extraordinary relief” from that default — represent a significant departure from decades of agency practice. For most of the past thirty years, adjustment of status was treated, in effect, as a routine and predictable step for any eligible applicant with an available visa number. That presumption has now been reversed.
“Current and future adjustment applicants and their immigration counsel will need to make a clear and well-documented case that the applicant merits a positive exercise of discretion.”
USCIS POLICY GUIDANCE, MAY 2026:
The Balancing Test: Negative and Positive Factors
The policy memo provides a non-exhaustive list of factors USCIS officers must weigh when deciding whether to exercise discretion favorably. No single factor is automatically disqualifying or automatically sufficient — the determination is holistic. The following grid summarizes the key considerations on each side of the ledger.
Factors Weighing Against Approval:
- Prior or current immigration law violations
- Violations of nonimmigrant status terms
- Unauthorized employment in the U.S.
- Strict nonimmigrant intent declared at entry, later contradicted
- Failure to depart at end of authorized stay
- Any criminal history
- False statements to U.S. government authorities
- National security concerns
- Insufficient country vetting/screening information
- Other conduct deemed negative by USCIS
Factors Weighing in Favor of Approval:
- Full compliance with all laws, including immigration laws
- Lengthy lawful residence with strong community ties
- Consistent employment history
- History of tax compliance
- U.S. education, training, and skills
- Close U.S. citizen or LPR family members
- Hardship upon departure or denial
- Community service and value
- Indicators of good moral character
Are H-1B and L-1 Workers Exempt?
No — and this is a critical point for the thousands of employer-sponsored workers currently in adjustment queues. H-1B and L-1 visa holders benefit from statutory dual intent, meaning that their intent to seek permanent residence is not, by itself, inconsistent with their nonimmigrant status. As a result, nonimmigrant intent is less likely to be a negative factor for H or L workers than it would be for a tourist or student visa holder. But H and L status alone does not exempt anyone from the new discretionary review framework, and it is not determinative.
H and L nonimmigrants with any of the negative risk factors listed above — immigration status violations, unauthorized employment, criminal history, or other adverse facts — should be prepared to present strong countervailing evidence of positive discretionary factors. Even H and L workers with clean immigration histories are now expected to make an affirmative showing of positive factors; the guidance signals that a merely passive file is no longer sufficient.
Who Needs to Act Now?
- H-1B workers with a pending or imminent I-485 filing — positive discretionary evidence should be compiled proactively
- L-1 intracompany transferees in EB-1C or PERM-based green card queues
- F-1 students who entered on strict nonimmigrant intent and later pursued employer sponsorship
- B-1/B-2 visitors who married a U.S. citizen — entry purpose vs. adjustment intent will face heightened scrutiny
- Applicants with any prior status violations, gaps in lawful status, or unauthorized work history
- Persons with pending I-485s who have already had an interview — a second discretionary interview is now possible
- Applicants with upcoming adjustment interviews — additional documentation should be prepared before attending
Pending Applications: What Must You Do?
Applicants with already-filed, pending I-485 applications are not insulated from the new policy. Officers may apply the discretionary framework to cases already in the pipeline. Applicants who have already attended an adjustment interview may, in some instances, be called back for a second interview specifically so that USCIS can conduct a discretionary assessment under the current guidance. All pending applicants should consult with immigration counsel to evaluate whether supplemental evidence — tax records, employer letters, community affidavits, evidence of family ties and hardship — should be submitted proactively.
Applicants with upcoming interviews should plan to attend and should contact their immigration attorney in advance to discuss how the new guidance affects interview preparation and what additional documentation to bring. Canceling or postponing a scheduled interview is generally not advisable without counsel’s guidance.
Why Adjustment of Status Still Matters — Even Under the New Rules:
Despite the heightened scrutiny, adjustment of status continues to offer significant advantages that make it the preferred pathway for most eligible applicants. Filing Form I-485 domestically generally allows the applicant to obtain employment authorization (Form I-765) and advance parole travel permission (Form I-131) while the green card application is pending — benefits that consular processing does not provide. It also avoids the potential risks associated with international travel: departure from the United States can trigger unlawful presence bars under INA § 212(a)(9)(B) for applicants who have accrued more than 180 days of unauthorized presence, and consular processing introduces additional delays, costs, and the uncertainty of an overseas interview.
The new policy raises the bar for adjustment — it does not eliminate the pathway, and for the vast majority of applicants with clean immigration histories and strong positive factors, a well-documented I-485 package should continue to be approvable.
ATTORNEY NOTE — GREENCARDMAKER.COM
If you have a pending I-485, an upcoming adjustment interview, or are planning a green card filing in the near future, now is the time to review your immigration history with experienced counsel. The new policy rewards preparation: applicants who proactively document their compliance, employment, family ties, and community contributions will be far better positioned than those who file a bare-bones package. Do not travel internationally without first consulting your attorney. Our firm is actively monitoring USCIS guidance, RFE trends, and emerging litigation affecting this policy.
Common Questions Answered:
Has adjustment of status been eliminated?
- No. The new guidance does not eliminate adjustment of status or prevent USCIS from approving I-485 applications. It reframes the adjudication as a discretionary determination and instructs officers to require a stronger evidentiary showing — particularly from applicants with any adverse factors in their history.
Will USCIS automatically deny my I-485 if I entered on a tourist or student visa?
- Not automatically. Entry on a visa status with strict nonimmigrant intent (B-1/B-2 tourism, F-1 student) is listed as a potential negative factor when the applicant later seeks adjustment, because it may be viewed as conduct inconsistent with prior statements to immigration officials. However, the determination is fact-specific. Strong positive factors — particularly close U.S. citizen family members, lengthy lawful residence, and clear hardship — can outweigh this concern in many cases.
My I-485 interview was months ago and I have not received a decision. Could I be called back?
- Yes. USCIS has indicated that applicants who have already attended an adjustment interview may be scheduled for a second interview to allow officers to conduct a discretionary assessment under the new policy guidance. If you receive a notice of a second interview, contact your immigration attorney immediately to prepare.
I have no immigration violations and a clean record. Do I still need to submit additional evidence?
- Yes. The guidance indicates that even applicants without adverse factors are expected to present an affirmative showing of positive discretionary factors. The days of a minimal I-485 filing package are over. Evidence of employment history, tax compliance, community ties, family relationships, and good character is now expected from all applicants, though the depth of evidence required will vary based on individual circumstances.
EB-2 India Immigrant Visa Category Becomes Unavailable Until October 1, 2026 After Annual Visa Limit Reached
In a significant development affecting thousands of Indian professionals awaiting employment-based green cards, the U.S. Department of State has announced that the annual immigrant visa allocation for the EB-2 India category has been exhausted for Fiscal Year (FY) 2026.
As a result, the EB-2 India category is now officially unavailable and will remain unavailable through September 30, 2026, the final day of the current fiscal year.
This means that:
- U.S. Citizenship and Immigration Services (USCIS) cannot approve any pending or newly filed Adjustment of Status (Form I-485) applications in the EB-2 India category during this period.
- U.S. embassies and consulates worldwide cannot issue immigrant visas in the EB-2 India category until the new fiscal year begins.
- Applicants whose priority dates are current but whose cases have not yet been approved may experience delays until visa numbers become available again.
The State Department previously warned in its June Visa Bulletin that continued high demand and heavy visa usage could lead to the exhaustion of immigrant visa numbers in several employment-based categories before the end of the fiscal year. That prediction has now become reality for the EB-2 India category.
What Happens on October 1, 2026?
The annual immigrant visa quotas will reset at the beginning of Fiscal Year 2027 on October 1, 2026. At that time:
- USCIS may resume approving eligible EB-2 India adjustment of status applications.
- U.S. consulates and embassies may resume issuing EB-2 India immigrant visas.
- New visa numbers will become available under the FY 2027 allocation.
However, applicants should understand that visa number availability does not guarantee immediate approval. USCIS must still complete all required background checks, medical reviews, and adjudication procedures before approving a case.
The exhaustion of EB-2 India visa numbers reflects the continuing demand for employment-based green cards among highly skilled Indian professionals working in the United States. Many applicants have already waited years for immigrant visa availability due to country-specific quotas and annual numerical limitations imposed by U.S. immigration law.
Applicants with pending cases should continue maintaining valid underlying immigration status whenever possible, monitor future Visa Bulletins closely, and ensure that USCIS has updated contact information and any requested documentation.
Individuals with pending I-485 applications should not panic. Their cases remain pending and may continue through background checks and pre-adjudication processing. However, final approval cannot be issued until visa numbers become available again beginning October 1, 2026, unless further State Department guidance is issued.
Given the ongoing demand across employment-based categories, applicants should also be prepared for possible retrogression or future visa number shortages in other employment-based classifications during FY 2027.
For case-specific guidance regarding your priority date, adjustment of status application, or immigrant visa processing, consult with qualified immigration counsel.
This development highlights the continuing backlog facing Indian employment-based immigrants and underscores the importance of maintaining valid status and planning for potential visa-number interruptions.
USCIS Site Visits Are Increasing: How H-1B and L-1 Employees and Employers Can Prepare and Avoid Visa Revocation, NTA Proceedings, and Possible Deportation
As immigration enforcement continues to expand, U.S. Citizenship and Immigration Services (USCIS) and its Fraud Detection and National Security Directorate (FDNS) are conducting more frequent site visits involving H-1B, L-1, O-1, R-1, and employment-based immigration cases. A routine site visit can quickly become a serious compliance issue if the employer or employee is unprepared.
In today’s environment, a negative site visit report can result in a petition revocation, denial of future immigration benefits, referral to ICE, issuance of a Notice to Appear (NTA), and in some cases removal (deportation) proceedings.
Why Does USCIS Conduct Site Visits?
USCIS conducts site visits to verify:
- The company actually exists and operates.
- The employee is working at the approved work location.
- The job duties match the petition.
- The salary and position are consistent with the filing.
- The employer maintains the right to hire, pay, supervise, and terminate the employee.
- No fraud or material misrepresentation occurred during the petition process.
Site visits may occur without advance notice and can take place at:
- Company headquarters
- Branch offices
- Client locations
- Remote work locations
- Employee home offices
Common Reasons Cases Get Into Trouble
Many employers assume that because the petition was approved, they are safe. Unfortunately, approval is only the beginning.
USCIS frequently identifies issues such as:
- Employee working at an unapproved location
- Material change in job duties
- Salary reduction
- Bench time without pay
- Incorrect manager information
- Inability of staff to identify the employee
- Employee performing duties significantly different from the petition
- Third-party placement issues
- Failure to maintain public access files
- Unauthorized remote work arrangements
Any of these issues can trigger further investigation.
Documents Employers Should Maintain at All Times
Every H-1B and L-1 employer should maintain a compliance file containing:
H-1B Cases:
- Certified LCA
- Complete H-1B petition
- USCIS approval notices
- Public Access File
- Payroll records
- W-2 forms
- Employee organizational chart
- Work location information
- Client contracts (if applicable)
- End-client letters (if applicable)
- Job descriptions
- Performance reviews
L-1 Cases:
- Corporate organizational charts
- Proof of qualifying relationship
- Payroll records
- Job descriptions
- Management hierarchy
- Evidence of managerial or specialized knowledge duties
- Business licenses and tax filings
Employee Preparation Checklist
Every H-1B or L-1 employee should know:
- Employer’s legal name
- Job title
- Salary
- Work location
- Reporting manager
- Daily job duties
- Whether they work directly for the petitioner or at a client site
Employees should review their petition before any site visit and ensure they understand what was filed with USCIS.
If an FDNS Officer Arrives
Remain professional and cooperative.
Employers Should:
- Verify officer credentials.
- Notify immigration counsel immediately.
- Designate one company representative to accompany the officer.
- Take detailed notes.
- Request copies of documents requested.
- Never guess or speculate.
Employees Should:
- Answer truthfully.
- Avoid exaggeration.
- Do not provide information outside personal knowledge.
- Explain if unsure rather than guessing.
- Notify HR and counsel immediately after the interview.
Remote Workers Are Not Exempt
Many employers mistakenly believe remote workers are less likely to be visited.
USCIS may visit:
- Home offices
- Hybrid work locations
- Remote work sites
Employees should be prepared to demonstrate:
- Actual work performance
- Employer supervision
- Communication with managers
- Business necessity of remote work
Red Flags That Can Lead to Revocation
USCIS may consider revocation if it finds:
- Fraud or misrepresentation
- Fake work locations
- Non-existent projects
- Unauthorized third-party placement
- Failure to pay required wages
- Material job changes without amendment
- Lack of employer control
- Inability to establish specialty occupation or managerial capacity
The Immigration Consequences Can Be Severe
A negative site visit can lead to:
- Notice of Intent to Revoke (NOIR)
- Petition revocation
- Denial of extension petitions
- Denial of adjustment of status
- Loss of employment authorization
- Accrual of unlawful presence
- Issuance of a Notice to Appear (NTA)
- Removal proceedings before an Immigration Judge
For L-1 and H-1B workers who rely on the validity of their nonimmigrant status, a revocation can create significant immigration complications affecting spouses and children as well.
Best Practices to Avoid Problems
Employers
- Conduct annual immigration audits.
- Train HR and managers.
- Maintain complete immigration files.
- File amendments when required.
- Track employee work locations.
- Review payroll records regularly.
- Respond immediately to government inquiries.
Employees
- Maintain copies of petitions and approval notices.
- Understand your job duties.
- Notify employers before changing work locations.
- Keep records of projects and reporting structure.
- Report discrepancies immediately.
Final Thoughts
The best defense against an FDNS site visit is preparation. Most revocations do not occur because of intentional fraud but because employers and employees fail to maintain compliance after approval.
Companies should treat every H-1B and L-1 petition as a living compliance file rather than a one-time filing. Proper preparation, accurate records, and immediate legal guidance can make the difference between a successful site visit and a costly revocation that could ultimately lead to removal proceedings.
In the current enforcement environment, compliance is no longer optional—it is essential.
Sincerely,
Keshab Raj Seadie, Esq.
Law Offices of Keshab Raj Seadie, P.C. Disclaimer: This newsletter is intended for informational purposes only and does not constitute legal advice. Always consult an attorney for personalized advice.
