May 22, 2026 – Weekly Immigration News Update.

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 Announces Major Shift: Adjustment of Status to Be Granted Only in “Extraordinary Circumstances”

The U.S. Citizenship and Immigration Services (USCIS) announced a significant policy change that could dramatically affect foreign nationals currently living in the United States on temporary visas who intend to obtain permanent residence (“Green Card”) through Adjustment of Status (AOS).

According to the new USCIS policy memo, the agency emphasized that Adjustment of Status inside the United States is considered an “extraordinary form of relief” and that, consistent with the agency’s interpretation of longstanding immigration law, most applicants seeking lawful permanent residence should instead complete immigrant visa processing through a U.S. consulate abroad under the supervision of the U.S. Department of State.

USCIS stated that temporary visa holders—including F-1 students, H-1B workers, B-1/B-2 visitors, J-1 exchange visitors, and other nonimmigrants—are expected to return to their home countries to complete immigrant visa processing unless they can demonstrate “extraordinary circumstances” justifying Adjustment of Status within the United States.

USCIS Position:

USCIS Spokesman Zach Kahler stated that the agency is “returning to the original intent of the law” and that temporary stays in the United States “should not function as the first step in the Green Card process.” The agency further noted that directing more applicants toward consular processing would reduce the burden on USCIS resources and allow the agency to focus on other adjudications, including naturalization applications and humanitarian cases.

Potential Impact on Employment-Based and Family-Based Cases:

If implemented aggressively, this policy could have far-reaching consequences for employment-based and family-based immigrants already present in the United States. Historically, many foreign nationals lawfully entered the U.S. on temporary visas and later adjusted status through employer sponsorship or family petitions without departing the country.

This policy may particularly affect:

• F-1 students transitioning to employment-based Green Cards
• H-1B professionals with pending I-140 petitions
• Individuals pursuing marriage-based Green Cards after lawful entry
• Dependents in H-4, L-2, or F-2 status
• Individuals relying on concurrent filing of I-485 applications

The memo also raises concerns regarding travel risks, immigrant visa interview delays abroad, potential unlawful presence bars, and uncertainty for applicants whose cases are already pending.

Case-by-Case Determinations:

Importantly, USCIS indicated that officers will continue reviewing cases individually and may still approve Adjustment of Status applications in “extraordinary circumstances.” However, the memo does not clearly define the full scope of what circumstances will qualify, creating significant uncertainty for future applicants.

Our View:

This policy represents one of the most restrictive interpretations of Adjustment of Status eligibility in recent years and could fundamentally alter long-established immigration strategies used by employment-based professionals, students, investors, and families already present in the United States.

Foreign nationals currently maintaining lawful status should consult experienced immigration counsel before filing any Adjustment of Status application, traveling internationally, or making long-term immigration decisions based on prior USCIS practices.

CLIENT ALERT — IMMIGRATION STRATEGY
EB-5 vs. EB-1A vs. EB-2 NIW
Why Securing One of These Green Cards — and Doing It Through Consular Processing — Has Become Mission-Critical

A policy storm is reshaping the green card map. On May 22, 2026, reporting confirmed that U.S. Citizenship and Immigration Services (USCIS) is moving to treat Adjustment of Status (AOS) inside the United States as an “extraordinary form of relief” rather than the default path to a green card. The agency’s position, echoing recent guidance that recasts other discretionary benefits as last-resort measures, is that a foreign national who is in the U.S. temporarily and wants a green card should generally return home and complete immigrant visa processing at a U.S. consulate—absent extraordinary circumstances decided case by case.

For founders and self-petitioners, the practical message is sharper still: USCIS is signaling reluctance to grant adjustment for many startup-based and entrepreneur cases except in rare situations. That makes the choice of category and the choice of process the two decisions that now determine whether you keep your life in the U.S. uninterrupted or face an exit-and-return abroad. Below we compare the three strongest self-driven options — EB-5, EB-1A, and EB-2 National Interest Waiver (NIW) — and explain how to build a winning case in each, with consular processing in mind from day one.

What Actually Changed—and Why It Matters?

Historically, a person who entered lawfully on a temporary visa (F-1, H-1B, L-1, O-1, B-1/B-2, J-1) and later became the beneficiary of an immigrant petition could file Form I-485 and adjust status without leaving the country. AOS came with built-in advantages: a work card (EAD), Advance Parole travel, and the ability to keep working and living here while the case was pending.

The emerging posture narrows that door. If officers are instructed to reserve AOS for “extraordinary circumstances,” more applicants — including employment-based professionals and entrepreneurs already in the U.S. — may be steered toward consular processing at an embassy abroad. The catch is that leaving the U.S. is exactly what triggers risk: the 3- and 10-year unlawful presence bars, interview backlogs at posts overseas, and the loss of in-country waivers that are only available to those who remain here.

The strategic conclusion: the safest position is to (1) qualify in a category strong enough to be approved on the merits, and (2) hold immigration status so clean that consular processing carries little or no admissibility risk. EB-1A, NIW, and EB-5 are the three categories an individual can pursue largely on their own initiative—without depending on an employer’s sponsorship or a labor certification—which is why they have become the centerpiece of post-2026 planning.

Side-by-Side: The Three Self-Driven Green Cards:

Best for Researchers, founders, athletes, artists, executives with awards & recognition Skilled professionals with advanced degrees & a high-impact venture investors with lawful, traceable capital.

Note: EB-1A and EB-2 are subject to per-country limits and may face priority-date backlogs for India and China. EB-5 reserved visa set-asides (rural, high-unemployment, infrastructure) can offer faster movement for backlogged nationalities.

EB-1A — Extraordinary Ability:

EB-1A is the fastest premium route for someone who is genuinely at the top of their field. It is a first-preference category, often with shorter backlogs, and it allows premium processing of the I-140 in 15 business days.

How to build a stronger EB-1A case:

• Lead with sustained acclaim, not a checklist. USCIS uses a two-step Kazarian analysis: first count the regulatory criteria you meet (you need at least 3 of 10), then weigh them in a final-merits determination. Winning cases win step two — the totality showing you are one of the small percentage at the very top.
• Engineer the criteria deliberately. Strong building blocks include major awards, judging others’ work (peer review, grant panels, hackathon judging), original contributions of major significance, authorship, press coverage in your name, high salary evidence, and leading/critical roles for distinguished organizations.
• Quantify impact. Citation counts, adoption metrics, revenue or user growth attributable to your work, and independent letters from experts who do not know you personally carry far more weight than glowing letters from collaborators.
• Tell a coherent story of recognition. Tie every exhibit back to one thesis: the field recognizes you as a leader. Disjointed evidence is the most common reason strong profiles get RFEs.

EB-2 NIW — National Interest Waiver:

NIW lets a person with an advanced degree (or exceptional ability) skip the job offer and PERM labor certification by showing their work serves the U.S. national interest. It is the most flexible self-petition route for founders, scientists, engineers, and skilled professionals who are excellent but not yet “extraordinary.”

How to build a stronger NIW case:

USCIS applies the three-prong Dhanasar framework. A persuasive petition addresses each prong head-on:

• Substantial merit and national importance. Define the endeavor narrowly and concretely (not “I’m a good engineer” but “scaling domestic semiconductor packaging”). Connect it to U.S. priorities: economic growth, critical technology, healthcare, energy, national security, or job creation in underserved regions.
• Well-positioned to advance it. Show your record, skills, funding, traction, and a credible plan. Letters of support, an actual business or research roadmap, term sheets, grants, patents, and customer or institutional commitments matter here.
• Beneficial to waive the job offer/PERM. Argue that requiring labor certification would harm the national interest — e.g., your venture creates rather than fills jobs, or your mobility and speed are themselves the value.

Founder tip: a self-funded or VC-backed startup pitched as a national-interest endeavor can be far stronger than a thin “researcher” profile. Treat the petition like an investor memo with legal citations.

EB-5 — Immigrant Investor:

EB-5 buys certainty: you qualify by investing and creating jobs rather than by proving acclaim. As of 2026 the thresholds set by the EB-5 Reform and Integrity Act of 2022 (RIA) are $800,000for a project in a Targeted Employment Area (rural or high-unemployment) or qualifying infrastructure project, and $1,050,000 otherwise. The Regional Center Program is authorized through September 30, 2027.

Time-sensitive: the RIA’s grandfathering provision sunsets on September 30, 2026. Investors who file before that date receive significant protection if the program later lapses — a major reason to move now rather than wait.

Choosing the right project:

• Prefer TEA / reserved-visa set-asides. Rural and high-unemployment projects unlock the lower $800K threshold and dedicated visa set-asides that can move faster for backlogged countries like India and China.
• Scrutinize job creation. Each investor must create 10 full-time U.S. jobs. Demand a credible economic methodology and a realistic construction/operations timeline.
• Verify the regional center’s compliance. Confirm I-956F approval, annual integrity-fund payments, audit history, and transparent fund administration.
• Insist on at-risk-but-structured capital. The law requires capital truly at risk — no guaranteed returns — so diligence on the developer, the capital stack, and exit timing is everything.

Source of funds — where most EB-5 cases live or die:

USCIS demands a clean, fully traced path from the original lawful source of every dollar to the new commercial enterprise. Build the chain end to end:

• Identify the source. Salary, business profits, sale of property, gift, inheritance, or a lawfully obtained loan — each must be documented to its origin.
• Document lawful earning. Tax returns, employment or business records, audited financials, and bank statements that reconcile to the claimed amounts.
• Trace every transfer. Show the money moving step by step — sale deed → buyer’s payment → your account → conversion/remittance → escrow → the project — with matching dates and amounts.
• Handle gifts and loans carefully. For a gift, document the donor’s lawful source too. For a loan, prove it was lawfully obtained, properly secured, and explain repayment — collateralized loans are accepted when documented.
• Address currency and cross-border rules. Where capital originates in countries with currency-export limits, show lawful, compliant remittance structures rather than informal transfers.

Why Consular Processing Is Now the Critical Step:

If AOS is being reserved for extraordinary cases, the green card itself is only half the battle — how you receive it is the other half. Building toward consular processing from the start protects you:

• Approve the petition first. A clean I-140 or I-526E approval is the foundation; nothing about the consular shift weakens an approved petition.
• Protect your immigration status. The single biggest consular risk is unlawful presence that triggers a 3- or 10-year bar on departure. Keep status valid and continuous so that leaving for an interview is safe.
• Plan the National Visa Center stage. Civil documents, the affidavit/financial evidence where applicable, and consular forms should be prepared early and accurately to avoid post-interview refusals.
• Time travel deliberately. Do not depart with a pending AOS and no Advance Parole; coordinate any exit with counsel against your priority date and post wait times.
• Pre-empt admissibility issues. Prior overstays, status violations, or misrepresentation questions are far better identified and addressed before you sit for a consular interview abroad.

Which Path Is Right for You?

• Choose EB-1A if you have awards, press, citations, judging roles, or leadership recognition — it is the fastest premium route when the record supports it.
• Choose NIW if you have an advanced degree and a high-impact venture or research agenda but are not yet “extraordinary” — it is the most flexible founder-friendly self-petition.
• Choose EB-5 if you have lawful, traceable capital and want the most certain, merit-independent route — and you can file before the September 30, 2026 grandfathering deadline.

Many clients pursue these in parallel — for example, filing NIW while preparing an EB-5 investment, or filing EB-1A with premium processing while a backup category matures. The right combination depends on your nationality, priority date, status history, and risk tolerance.

Talk to Counsel Before You File or Travel:

With AOS narrowing and the EB-5 grandfathering deadline approaching, timing and category selection are everything. Our firm has handled business and family immigration since 1999, with deep experience in EB-1A, NIW, and EB-5 petitions and consular processing. We will assess your profile, choose the strongest category, and build the case to be approved — and received — without disruption to your life in the United States.

Why Early PERM Filing and Proper Case Strategy Are More Important Than Ever

In today’s environment of heightened immigration scrutiny, “extreme vetting,” and increasing government audits, employers should not only begin the PERM labor certification process early, but also ensure that the offered position, degree requirement, experience requirement, wage level, and travel language are fully aligned from the beginning of the case.

The U.S. Department of Labor and USCIS are increasingly reviewing whether the PERM application, H-1B petition, Labor Condition Application (LCA), job advertisements, and employee qualifications genuinely match the actual position being offered. One of the most common triggers for audits, RFEs, NOIRs, or denials is inconsistency between the job duties and the educational background required for the position. For example, if the position requires highly specialized engineering or computer science duties, but the PERM or H-1B petition allows unrelated degrees without a clear explanation, the government may question whether the position truly qualifies as a specialty occupation or whether the minimum requirements were tailored to the foreign worker.

Similarly, experience requirements and wage levels must be carefully coordinated. Employers filing a Level 1 wage while simultaneously requiring multiple years of experience or advanced skills may face scrutiny regarding whether the wage level properly reflects the complexity of the job. Inconsistencies between the PERM requirements and prior H-1B filings can also create allegations of material misrepresentation or trigger DOL audits.

Travel language has also become increasingly critical, especially for consulting, engineering, healthcare, and project-based positions. If employees may travel to client sites, branch offices, or remote locations, the PERM application, H-1B petition, LCA postings, and support letters should consistently disclose such travel requirements. Failure to properly include travel language may later create compliance issues during FDNS site visits, DOL investigations, H-1B amendments, or I-140 adjudications.

Because PERM processing times now frequently exceed 500 days, early filing is essential to preserve eligibility for AC21 one-year H-1B extensions beyond the six-year limit. In many cases, employers should consider initiating the Green Card process during the employee’s second or third year of H-1B status to avoid future disruptions caused by processing delays, visa retrogression, audits, or changing USCIS policies. Proper planning at the beginning of the process can significantly reduce the risk of denials, audits, and costly delays later in the Green Card journey.

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.