Adjustment of Status Called “Extraordinary”: The Two USCIS Policies Now in Federal Court
Other languages: Türkçe
The adjustment of status policy that USCIS adopted in May 2026 — the one that treats applying for a green card inside the United States as extraordinary rather than ordinary — is now being challenged in federal court. A complaint filed on 5 October 2026 in the District of Massachusetts asks the court to set aside that policy and a second one, issued in August, that lets officers deny a case without first asking for the missing document. If you have an I-485 pending, nothing about your case changes today. What changes is that there is now a live question about whether these policies survive.
What the May policy actually says
Adjustment of status is the process in INA 245 by which someone already in the United States becomes a permanent resident without leaving. For decades it has been the normal route for the spouse of a U.S. citizen, for the worker whose employer has an approved petition, for the student who married an American. The statute makes it discretionary — “may” rather than “shall” — but in practice discretion was exercised in favour of applicants who met the requirements and had no adverse history.
PM-602-0199, issued on 21 May 2026, recasts that discretion. It describes adjustment inside the United States as an extraordinary departure from the ordinary immigrant visa process at a consulate abroad, and it directs officers to treat an applicant’s decision not to consular process as a factor weighing against the application. On the policy’s own logic, an applicant who chose to adjust must show equities strong enough to offset that negative factor.
What the memorandum does not do is define the standard. It gives no checklist, no list of illustrative examples and no safe harbour. That is the practical complaint about it: an applicant cannot read it and know what would be enough.
The memorandum does not stop USCIS from receiving I-485 filings, does not revoke pending applications and does not create a new eligibility requirement. Eligibility under INA 245 is unchanged. The change is at the discretionary stage, after eligibility is established.
Who is most exposed, and who is less
| Applicant | Exposure under the May policy |
|---|---|
| Entered on a visitor visa, then adjusted | Highest. The policy treats intent at entry and the reason for not consular processing as central questions. |
| F-1 student who adjusted after graduating or marrying | High. A single-intent status followed by adjustment is exactly the pattern the policy singles out. |
| H-1B, L-1 and their H-4 / L-2 dependents | Lower. These are dual-intent categories, and the policy accepts that adjustment is not inconsistent with maintaining them. Not an exemption — dual intent alone is not a favourable exercise of discretion. |
| Anyone with a status violation or an overstay in their history | High. Failure to comply with the conditions of admission, and failure to depart when expected, are treated as highly relevant negative factors. |
This table describes how the policy is framed, not how any individual officer will decide a particular case.
The August policy, and why the two together matter
On 5 August 2026 USCIS issued Policy Alert PA-2026-05. Officers may now deny a benefit request that lacks required initial evidence without first issuing a Request for Evidence or a Notice of Intent to Deny. It took effect immediately and applies to requests that were already pending, which is why the complaint describes it as retroactive. USCIS’s own framing is blunt: a person filing should not assume there will be a chance to cure a deficiency after filing. We set that policy out in full in our note on denial without an RFE.
Read together, the two policies change the cost of a thin filing. The May policy raises what you have to show on discretion; the August policy removes the assumption that you will be asked for whatever you left out. A file that would once have drawn an RFE can now simply be denied — and an I-485 denial carries consequences well beyond the fee, because an applicant who was relying on the pending application for work authorisation and lawful presence loses both.
The May policy raises the bar. The August policy removes the second chance. Neither is dangerous alone.
What the lawsuit asks for
The complaint in American Association of University Professors v. Mullin was filed on 5 October 2026 in the U.S. District Court for the District of Massachusetts, docketed as No. 1:26-cv-14527. The plaintiffs are spouses and parents of U.S. citizens who filed before these policies existed, people with pending or planned employment-based applications, unions whose members are affected, and a legal services provider that has had to divert staff to adjustment cases. They are represented by the American Immigration Council, the American Immigration Lawyers Association, Democracy Forward and Colombo & Hurd, PL.
The relief sought is the setting aside of both policies. As of 11 October 2026 the case is pending and no order has been reported. There is no injunction, so both policies remain in force and USCIS continues to adjudicate under them.
A pending lawsuit is not a reason to postpone a filing, and it is not a reason to file thin in the hope the policies fall. If the policies are struck down, a strong filing is unaffected. If they are upheld, a strong filing is the only thing that helps. The right response to litigation uncertainty is a better record, not a delayed one.
What to do about your own case
- File complete, not fast. Every item of required initial evidence, in the filing itself. After August 2026 the RFE is a courtesy, not a step you can count on.
- Build the discretionary record on purpose. Length of residence, family ties, tax compliance, stable employment, U.S. education, community involvement — these are the equities the policy asks officers to weigh, and they belong in the file rather than in your head.
- Explain why you adjusted. If there is a real reason you did not consular process — a child in school, a job you cannot leave, a medical situation, conditions in your home country — document it. The policy makes that an explicit question.
- Deal with the history rather than hoping it is overlooked. An overstay, a status violation or a prior refusal is better addressed in the filing than discovered by an officer.
- Reconsider consular processing deliberately, not reflexively. For some cases it is now the cleaner route. For many it is not, because leaving the United States can trigger an unlawful presence bar. That comparison is case-specific and should be made before anything is filed or abandoned.
- Be careful with travel. If you are relying on advance parole, read our guide to travelling with a pending green card before you book.
If you want the mechanics of the application itself rather than this policy question, our I-485 adjustment of status guide walks through eligibility, evidence and timing, and the October 2026 fee increase affects what you pay to file.
Frequently asked questions
Does the May 2026 policy mean my adjustment of status will be denied?
No. The policy does not change eligibility under INA 245 and it does not direct denial. It raises what an applicant must show at the discretionary stage, after eligibility is established, and it treats the decision not to consular process as a negative factor to be weighed. A well-documented application from an eligible applicant with good equities is still approvable.
Does the lawsuit filed on 5 October 2026 stop USCIS from applying these policies?
Not as of 11 October 2026. American Association of University Professors v. Mullin, No. 1:26-cv-14527 (D. Mass.), is pending and no order has been reported. There is no injunction, so both the May 2026 memorandum and the August 2026 policy alert remain in force and USCIS continues to adjudicate under them.
I filed my I-485 before May 2026. Do these policies apply to me?
The August 2026 policy on denying without an RFE or NOID applies to requests that were already pending when it issued, which is one of the grounds on which the lawsuit challenges it. The May 2026 memorandum contains no prospective-only carve-out, so it is generally understood to reach pending applications as well. Neither policy revokes a pending application.
I am on an H-1B. Am I exempt?
No. H-1B and L-1 are dual-intent categories, and the policy accepts that seeking adjustment is not inconsistent with maintaining such a status, so the analysis is less hostile than for a visitor or a student. But dual intent alone is not a favourable exercise of discretion, and the August 2026 evidentiary policy applies to every filing regardless of category.
Should I file now or wait for the court to rule?
Waiting has its own costs — ageing out, a priority date that moves, a status that expires, a fee that rises. A pending lawsuit gives no one a filing extension. The sounder approach is to file a complete, well-documented application under the rules as they stand, which is what helps whether the policies are struck down or upheld.
Ozek Law Firm, LLC · Tolga Ozek, Attorney at Law
4500 East West Highway, Suite 150, Bethesda, MD 20814
+1 (202) 854-8545 · info@ozeklaw.com · ozeklaw.com/contact
Tolga Ozek is the founder of Ozek Law Firm, LLC in Bethesda, Maryland. His practice covers business and immigration law, including investor and intracompany transfer visas, employment-based immigration, corporate formation and change of status.
We review the discretionary record, not just the eligibility checklist — what an officer will weigh, what is missing, and whether adjustment is still the right route. In English or Turkish.
This page is for general information only and does not constitute legal advice. Attorney Advertising. Fees, form editions, court figures and policies reflect information published as of October 11, 2026. Confirm current amounts and requirements at uscis.gov, travel.state.gov and justice.gov/eoir. No attorney can guarantee an outcome.
Ozek Law Firm, LLC · 4500 East West Highway, Ste 150, Bethesda, MD 20814 · +1 (202) 854-8545 · info@ozeklaw.com · www.ozeklaw.com
Licensed in Maryland, New York, California and Washington, D.C.; federal immigration practice across the United States. Consultations in English, Turkish, Spanish, Arabic, Russian and Chinese.
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