TLDR: USCIS’s new Adjustment of Status (AOS) discretion policy is already changing how green card cases are being adjudicated. Immigration attorneys across the country are reporting more Requests for Evidence (RFEs), delayed approvals, and new interview questions focused on discretionary factors rather than basic eligibility. While the law has not changed, USCIS officers are being directed to place greater emphasis on factors such as maintaining lawful status, prior immigration history, family ties, employment history, and community involvement. If you have a pending green card application, maintaining valid nonimmigrant status where possible and preparing evidence of positive discretionary factors may be more important than ever.
Transcript:
Last Friday, USCIS quietly changed the way green card interviews work. And by Monday morning, attorneys across the country were watching cases that would have been approved get put on pause.
Cases that should have been routine.
Couples walked out of their interview thinking they were done.
And if you have a pending green card case inside the United States right now, what I’m about to tell you matters.
I’m Rosanna Berardi, managing partner and immigration attorney at Berardi Immigration Law. Our firm handles thousands of adjustment of status cases, and what we’re seeing this week is unlike anything we’ve seen in years.
On May 21st, USCIS issued a policy memo directing officers to apply a heightened discretionary standard to adjustment of status cases.
Adjustment of status, or AOS, is the process that allows someone already inside the U.S. to apply for a green card without leaving the country.
Historically, if someone was eligible for adjustment and did not have fraud, criminal issues, serious immigration violations, or security concerns, approval was generally expected.
But this memo changes the tone dramatically.
USCIS is now describing adjustment of status as an extraordinary privilege rather than a routine benefit. More importantly, the agency is instructing its officers to weigh discretionary factors much more heavily.
What are some of these factors?
- Prior status violations
- Unauthorized employment
- Gaps in status
- Whether someone maintained valid nonimmigrant status
- Whether their conduct was consistent with their original visa classification
- Whether someone failed to depart after the purpose of their admission was completed
This memo even states that simply having no negative factors may no longer be enough.
More importantly, this policy applies immediately to pending cases, too.
So what are we actually seeing in real life?
This is where things get very important, so listen up.
We are now hearing from attorneys around the country that many adjustment of status cases are not being approved at the interview level anymore, even where the interviews themselves went very well.
Instead, people are receiving one of two things:
First, either a Request for Evidence (RFE) or something called a Notice of Interview Results, which is basically saying your case is complete but it’s being held for further review.
That’s a major change from normal practice.
Second, we’ve also seen reports of officers asking entirely new categories of questions during marriage-based green card interviews.
Questions like:
- Why did you apply for adjustment of status instead of consular processing?
- Is there anything preventing you from pursuing consular processing?
- Why did you remain in the United States after your status expired?
- Do you still have family ties in your home country?
These are not traditional marriage interview questions.
They’re discretionary questions, and they appear designed to evaluate whether USCIS believes the applicant deserves to adjust status inside the United States rather than process abroad.
We’re also starting to see Requests for Evidence requesting evidence of positive discretionary factors, including:
- Long-term residence in the U.S.
- Family ties
- Employment history
- Tax compliance
- Community involvement
- English fluency
- Hardship evidence
- Financial records
- Bank statements
- Employer letters
This is a very different style of adjudication than we’ve seen historically in most straightforward adjustment cases.
So, who’s at risk here?
Right now, based on both the memo and early adjudication trends, several groups appear to face higher risk.
First, individuals who allowed their underlying nonimmigrant status to expire and relied only on a pending adjustment of status application and combo EAD card.
Historically, many people did this legally and strategically, but the memo appears to treat failure to maintain underlying status as a potentially adverse discretionary factor.
Second, individuals with overstays, unauthorized employment, or periods out of status.
Now, here is something very important.
Congress specifically created forgiveness provisions in immigration law for many family-based applicants and certain employment-based applicants under INA 245, which is the adjustment provision.
So the law itself has not changed.
What appears to be happening is that USCIS may now treat conduct that’s technically forgiven under the statute as a negative discretionary factor anyway.
That distinction is incredibly important and makes my blood pressure elevate.
Third, individuals from travel ban countries.
These cases are super complex because the memo repeatedly compares adjustment of status to consular processing abroad.
But for some people, leaving the U.S. is not realistically safe or practical.
Finally, we’re now hearing reports that USCIS may be questioning whether certain applicants who filed after their status expiration remain eligible for adjustment of status while headquarters develops further guidance.
That issue is still evolving rapidly, and I want to be very careful here because we simply do not have enough confirmed information yet.
But if true, this could create major issues for people who relied on historically accepted interpretations of adjustment of status eligibility.
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The difference between people who come out of this okay and the people who get blindsided is going to come down to one thing: preparation.
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And if you know someone with a pending case, send them this video today. It might change how they walk into their interview.
I’m Rosanna Berardi. Thank you so much for listening today.
And for right now, do not panic.
I know it’s easier said than done, but we’re still in the very early stages of implementation.
We don’t even know yet:
- How aggressively this policy is going to be applied nationwide
- Whether certain field offices will apply it differently
- Whether there will be litigation that blocks portions of it
- Whether USCIS headquarters will issue additional clarifying guidance
- Whether the courts will push back
Also, if you have underlying status like H-1B, L-1, TN, O-1, or any other nonimmigrant classification, maintaining that status may now be more important than ever for employment-based applicants.
Especially continuing extensions where possible, as they may provide an important layer of protection.
Third, people should begin thinking proactively about discretionary evidence.
Not because you’ve done something wrong—you haven’t—but because USCIS appears to be asking applicants to affirmatively demonstrate positive equities.
This may include:
- Tax records
- Community involvement
- Stable employment history
- Long-term lawful residence in the United States
- Family ties
- Educational achievements
- Proof of compliance with immigration laws
Finally, if you have a complicated immigration history, prior status issues, unlawful presence concerns, or are relying solely on a pending I-485 and EAD, this is probably the time to speak with an experienced immigration attorney about your strategy moving forward.
This is one of the most significant adjustment of status policy shifts we’ve seen in years.
Even immigration lawyers are still trying to understand where this is heading in practice.
But I want people to remember something very important:
A USCIS memo is not Congress changing the law.
And immigration policy announcements do not always unfold exactly the way they initially appear.
Right now, the biggest thing people need is good information, individualized legal advice, and a calm, strategic approach.
We’re monitoring RFEs, interview trends, field office behavior, and additional guidance literally in real time.
As we learn more, I’ll continue posting updates.
If you found this video helpful, please subscribe because I have a feeling this is going to continue evolving very quickly over the next several weeks and months.
And if you have a pending adjustment of status case right now, know that you’re absolutely not alone in feeling anxious about this.
We’re all watching this.
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