USCIS AOS Memo: What Employers and Foreign National Employees Need to Know

On May 21, 2026, USCIS issued policy memorandum PM-602-0199, titled "Adjustment of Status is a Matter of Discretion and Administrative Grace, and an Extraordinary Relief that Permits Applicants to Dispense with the Ordinary Consular Visa Process." The agency's accompanying press release declared that USCIS would grant adjustment of status (AOS) "only in extraordinary circumstances," triggering immediate concern across HR teams, in-house counsel, and corporate immigration practitioners nationwide.

The memo is significant as AOS filings, one of the steps required in pursuit of a Green Card, play an important role in long term talent retention within corporate immigration programs. What the practical implementation of such a change would look like and whether H-1B status holders would actually be impacted is unknown. H-1B holders as an example have traditionally been allowed to pursue permanent resident Green Card status from within the U.S. without issue.

Whether and how this memo affects your employees depends largely on further USCIS guidance and litigation that is expected. An employee’s immigration status may very well also play an important role in determining whether an AOS filing will be allowed form within the U.S. as opposed to having to travel abroad for consular processing. Here is what we know right now, and what employers should be doing about it. It is expected that things will change rather quickly. We will update this page as new information becomes available, bookmark it to stay current. This information is not intended as legal advice.

What Is Adjustment of Status, and Why Does It Matter for Employers?

Adjustment of status (AOS) is the final stage of the U.S. green card process for foreign nationals already inside the United States. Rather than leaving the country to complete an immigrant visa interview at a U.S. consulate abroad, eligible employees can file for permanent residence domestically. For employers, AOS is a critical tool: it allows valued employees to complete the green card process without the disruption and risk of international travel and consular processing.

The memo does not introduce new law, it reinforces that AOS has always been discretionary, and instructs officers to weigh all relevant factors more carefully when adjudicating applications. What makes it significant for corporate immigration is its emphasis on the government's preference that immigrants go through the standard consular process abroad, and its signaling that those who seek to bypass that process will face greater scrutiny.

A Central Question: Will Dual Intent vs. Non-Dual Intent Status Play a Critical Role in Who is Impacted

The practical impact of this memo on any given employee may well end up turning on a key distinction: whether their current visa category carries dual intent.

Dual intent means a visa holder is legally permitted to simultaneously hold a temporary nonimmigrant status and pursue permanent residence in the United States. H-1B and L-1 visa holders have explicit statutory backing for dual intent. They entered the U.S. in a category that Congress specifically designed to allow pursuit of a green card, meaning their AOS filing does not appear to contradict the purpose of their admission in the way the memo describes. These employees likely present the strongest argument against any push toward mandatory consular processing, though our attorneys recommend monitoring how clarifying guidance and litigation address this category specifically before any AOS filing right now. The memo in fact calls out specifically that having dual intent and maintaining proper status does not automatically mean AOS will be allowed.

Non-dual intent visa categories appear to be more directly in the memo's crosshairs. Holders of TN, E-3, F-1 OPT, and J-1 visas entered the United States on the express or implied understanding that they would depart when their authorized period ended. The memo appears to target this group in particular, citing Congress's intent that nonimmigrants should depart rather than pursue permanent residence from inside the country. Our corporate team's current guidance is that employees in non-dual intent categories should consider waiting to file AOS applications until this memo has been litigated and its scope clarified. In fact all employees planning to file AOS cases need to discuss the potential risks at this time with their legal counsel.

O-1 visa holders could also be more directly impacted as it is not explicitly designated as dual intent under the statute, and while it has not historically posed issues for AOS filings, it is unclear how the memo may be applied to this category going forward. O-1 holders should consult with counsel before proceeding with an AOS application in the current environment.

What About PERM and I-140 Petitions?

Employers can continue filing PERM labor certifications and I-140 immigrant petitions. These are not adjustment of status applications, they are earlier stages of the green card process that establish an employee's eligibility and secure a priority date. Filing them now preserves an employee's place in line and does not trigger the discretionary concerns the memo raises.

The practical implication: for employees currently in non-dual intent status such as TN who are working toward a green card, it is worth considering a strategic move to H-1B status before the AOS stage. Changing to H-1B puts the employee in a dual intent category with statutory backing, creating a stronger foundation when it is time to file the I-485. Of course we will wait for official clarification that dual intent status individuals like H-1B are in the clear, but this is the hope at this stage.

What Employers Should Do Now

• Audit your green card pipeline by visa category. Identify which employees are approaching the AOS stage of their green card process and what status they currently hold.
• Discussion with counsel to understand how to tweak company immigration policy to perhaps pause AOS filings for employees, especially non-dual intent employees. Until litigation clarifies the memo's scope, employees on TN, E-3, F-1 OPT, J-1, and potentially O-1 should likely hold off on I-485 filings. Even H-1B and L-1 are not clearly given the green light yet and so may require a slight pause or delay. Of course each individual case is unique.
• Continue PERM and I-140 filings as normal. These earlier-stage petitions are unaffected by the memo and should proceed.
• Evaluate adding a requirement to Green Card sponsorship policies that include a move to dual intent status types like H-1B before any PERM or I-140 will be filed.
• Schedule strategy calls for affected employees. Each situation is fact-specific. Employees nearing the AOS stage deserve a dedicated conversation with counsel about how to proceed given their individual circumstances.
• Be aware of the family-based dimension. Some of your employees may have a U.S. citizen or LPR spouse whose family member is pursuing a marriage-based AOS case from within the United States, particularly if that family member is currently out of status. This memo increases the uncertainty for those cases, and affected employees may come to HR with questions.

What the Memo Does Not Say

As with the broader public reaction to this memo, it is important to separate the press release from the policy. The phrase "only in extraordinary circumstances" appeared in an agency official's public statement not in the operative text of the memo. The memo instructs officers to apply existing discretionary standards more rigorously and to document their reasoning, but it does not close the door on AOS for eligible applicants in appropriate categories.

USCIS also cannot change immigration law through a policy memo. Legal challenges are anticipated in the near term, and the courts will ultimately determine how far this memo's reach extends. It is possible that litigation results in a pause or modification of the memo's implementation before it meaningfully affects a large volume of cases.

What We Still Don't Know

USCIS has not provided implementation guidance, officer training instructions, or category-specific direction beyond what is in the memo itself. The memo does hint that more targeted guidance for specific AOS populations is forthcoming, so additional clarity, for better or worse, is likely.

In the meantime, we do not yet know how officers will treat employees who have maintained lawful status throughout their time in the U.S. but are in non-dual intent categories.

Boundless Is Monitoring This Closely

Our corporate immigration team is tracking adjudication patterns, incoming litigation, and any further agency guidance in real time. We will update this page as the situation develops. Please note that this is not intended to be legal advice or guidance specific to any individual or client.

If you would like to discuss how this memo affects your company's immigration program or specific employees, contact our team to schedule a strategy call.

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