𝗪𝗵𝗮𝘁'𝘀 𝗯𝗲𝗶𝗻𝗴 𝗰𝗵𝗮𝗹𝗹𝗲𝗻𝗴𝗲𝗱

• A May 21 policy memo calls adjustment of status "extraordinary" relief, a matter of discretion and administrative grace. USCIS says people admitted as nonimmigrants or paroled in are generally expected to get their green cards through a U.S. consulate. Choosing to adjust here counts against them unless they show "unusual or even outstanding equities." Dual-intent categories like H-1B and L-1 are listed as an exception, but the memo adds that maintaining dual-intent status is not enough, on its own, to warrant approval.

• The Aug. 5 policy lets USCIS deny a filing that doesn't establish eligibility when filed, without first issuing an RFE or NOID. It applies to pending cases too.

The plaintiffs want both policies set aside.

𝗪𝗵𝘆 𝗲𝗺𝗽𝗹𝗼𝘆𝗲𝗿𝘀 𝘀𝗵𝗼𝘂𝗹𝗱 𝗰𝗮𝗿𝗲

The memo doesn't change who is eligible. It changes how USCIS exercises discretion, and that reaches employees we've long treated as low-risk, including H-1B and L-1 workers. Their status still permits them to seek a green card, but valid status alone no longer means approval. Officers can look across the full immigration history. That includes past status gaps or unauthorized work that the statute may excuse for eligibility but that can still weigh against an applicant on discretion.

Put the two policies together and the risk compounds. A discretionary denial can arrive with no RFE first. For an employee relying on a pending I-485 rather than valid nonimmigrant status, a denial can mean leaving the U.S. to process at a consulate.

𝗪𝗵𝗮𝘁 𝘁𝗵𝗲 𝗹𝗮𝘄𝘀𝘂𝗶𝘁 𝗱𝗼𝗲𝘀𝗻'𝘁 𝗱𝗼

Filing a complaint doesn't pause either policy. Unless a court rules otherwise, USCIS applies both today, to new filings and pending cases alike.

𝗪𝗵𝗮𝘁 𝘁𝗼 𝗱𝗼 𝗻𝗼𝘄

1. Review each sponsored employee's full immigration history before filing an I-485, not just their current status.

2. File approval-ready. Assume you won't get an RFE to fix a gap.

3. Document positive factors affirmatively: the role, the employer's need, ties to the U.S., a clean compliance record. Under a discretionary standard, a record nobody addressed is a weak record.

4. Keep nonimmigrant status valid while I-485s are pending. Don't let the I-485 be the only thing keeping someone here.

5. For higher-risk cases, compare the options now, not after a denial. Consular processing carries its own risks today, including nationality-based visa restrictions, limits on where applicants can interview, and uncertain return timelines.

6. Watch the docket. In June, the same federal district court vacated the policy implementing the $100,000 H-1B fee, and the First Circuit declined to stay that ruling. A ruling here could change the picture quickly.
   
   

***Disclaimer: This post is for general informational purposes and does not constitute legal advice. Every case is fact specific. Please contact our office to discuss how this decision may affect your individual situation.***