The United States Citizenship and Immigration Services (USCIS) has issued a new policy memorandum that mandates foreign nationals in the United States who are seeking a green card to depart the country and apply from their home nation. This significant policy shift was announced by USCIS Spokesman Zach Kahler, who stated, “This policy allows our immigration system to function as the law intended instead of incentivizing loopholes. When aliens apply from their home country, it reduces the need to find and remove those who decide to slip into the shadows and remain in the U.S. illegally after being denied residency.”
The agency further clarified in a statement, “Nonimmigrants, like students, temporary workers, or people on tourist visas, come to the US for a short time and for a specific purpose. Our system is designed for them to leave when their visit is over. Their visit should not function as the first step in the Green Card process.”
Details of the New USCIS Memo
On May 21, 2026, USCIS released policy memorandum PM-602-0199, instructing officers to apply a stricter standard when reviewing Green Card applications filed from within the United States. The memo emphasizes that applying for a Green Card in the U.S., known as adjustment of status, is “an extraordinary form of relief” and “was not designed to supersede the regular consular visa-issuing process.”
This memo primarily affects foreign nationals currently working in the US on visas that are considered non-dual intent, such as F-1 OPT/STEM OPT, or those who are visa-waived, like ESTA travelers. These individuals will now need to apply for adjustment of status from an embassy or consulate outside the U.S., unless they can demonstrate extraordinary circumstances, though the memo does not define what constitutes such circumstances.
Important Caveats
It is important to note that this memo is likely to face legal challenges in court. The memorandum provides no guidance on implementation, including timelines or specific criteria beyond the factors already outlined in existing law. Most notably, no effective date was listed in the memo. Until the courts provide a ruling or USCIS issues further guidance, it remains unclear how officers will apply this policy in practice. However, understanding its potential implications for your workforce is crucial.
What the Memo States
USCIS has always possessed the legal authority to deny a Green Card application, even if the applicant meets all requirements, based on discretion—a weighing of positive and negative factors in a case. This memo reaffirms that this authority should be applied more deliberately and aggressively.
Officers are now provided with an explicit list of negative factors to consider, including:
- Violations of immigration laws or conditions of any immigration status held
- Current or previous instances of fraud or false testimony with any government agency
- Any conduct after entry inconsistent with the purpose of that visa
- Failure to depart as originally expected, which the memo describes as “highly relevant to this analysis”
To overcome these adverse factors, the memo sets a high bar. Applicants may need to demonstrate “unusual or even outstanding” factors, such as strong family ties and moral character. This means positive factors must be compelling enough to outweigh the fact that the applicant chose to stay in the U.S. rather than apply from abroad. Given the tone of the memo, USCIS is expected to apply this requirement stringently.
Implications for Your Workforce
For HR and mobility teams, the practical implication is that Green Card filings will require more effort and documentation from both the company and the employee.
For most employment-based cases, this is not entirely uncharted territory. Immigration attorneys should already be building filings that document an applicant’s ties to the U.S., their compliance record, and why their case deserves to proceed. However, the level of scrutiny has increased significantly. Filings can no longer be treated as routine.
Attorneys will now need to make a stronger case for every I-485 application, explaining why the applicant should be allowed to apply for their Green Card from inside the U.S. rather than having to leave. This is especially critical for those on non-dual intent visas. Expect more documentation requests. The memo requires officers to weigh factors including “family ties, immigration status and history, the applicant's moral character”—each must be supported with evidence.
Impact on Specific Populations
Here is what the memo means for specific groups. Most cases should remain manageable with proper preparation; the goal is to know where to focus attention.
H-1B and L-1 Workers
For H-1B and L-1 workers, the most consequential line in the memo is: “Maintaining lawful status in a dual intent nonimmigrant category is not sufficient, on its own, to warrant a favorable exercise of discretion.” This means that although H-1B and L-1 workers have long been able to apply for adjustment of status within the U.S., they can no longer assume that this pathway is automatic or purely administrative.
Officers need to see affirmative arguments for why applicants deserve to adjust status in the U.S., which could include evidence of tax history, family circumstances, career progression, and other evidence of roots in the U.S.
Scenario: An H-1B worker marries a U.S. citizen and files for a Green Card. In the past, this was a straightforward case. However, if they were arrested for disorderly conduct a few years ago, even if the conviction was expunged or they were still granted an H-1B visa, under this memo, the arrest can still be weighed against them. Cases that would have moved through adjudication quickly in the past may no longer do so.
F-1 Students on OPT
F-1 is not a dual intent visa. When students apply for this status via USCIS or for the visa at the consulate, they represent to an officer that they intend to return home. The memo instructs officers to weigh that representation when those same students later file for a Green Card. If you employ people on OPT who are on a path toward permanent residence, this warrants a conversation with your immigration counsel.
Scenario: An F-1 OPT worker completes a PhD in computer science, finishes STEM OPT at a tech company, and files for a Green Card arguing that their work is in the national interest. This is a strong case on the merits, except that years earlier, they told a consular officer they planned to go home. Under this memo, officers can now ask when they actually decided to stay and weigh that in their Green Card application. The case will not necessarily be denied, but it will need to explain that shift directly and outline the circumstances for applying for adjustment of status within the United States.
EB-2 and EB-3 Backlog Cases
For employees who have been waiting in the EB-2 or EB-3 backlog, particularly Indian nationals who may have been in the queue for a decade or more, the memo’s emphasis on equities—signs that the applicant has built a life in the U.S.—works in their favor. Deep positive U.S. ties, long employment history, children raised in the U.S., consistent compliance with relevant immigration law, and spouses with established careers can serve as evidence for why this person should be allowed to apply from inside the U.S. However, that evidence must be strongly documented.
B-1, B-2, and ESTA Travelers
Visitors on B-1, B-2, or ESTA visas face the most exposure under this memo. When they applied, they told a consular officer they were coming for a short trip and would leave. Filing for a Green Card within the United States after that, even in a legitimate marriage case, is something officers are now being told to weigh against them. If an employee or their spouse entered on a visitor visa and is now pursuing a Green Card, it should be flagged to immigration counsel before filing.
