On May 22, USCIS issued a policy memo directing officers to grant adjustment of status (Form I-485) only in “extraordinary circumstances,” shifting the default green card pathway to consular processing abroad. The change affects the 783,000 people who received green cards from within the US in the most recent fiscal year, per TIME’s reporting, and it lands at the exact moment frontier AI labs are bidding against each other for foreign ML researchers.
What the memo actually changes
Adjustment of status (AOS) allows people already in the US on temporary visas to apply for permanent residency without leaving the country. It has been the standard pathway for decades. The May 22 memo reclassifies AOS as “extraordinary relief,” meaning officers should grant it only in exceptional cases. The default path is now consular processing: depart the US, apply at a US embassy or consulate abroad, and wait.
The Department of Labor’s PERM labor certification process is unaffected. Employers can still file labor certifications. What changes is the back end: where the beneficiary actually receives the green card, and whether they can remain in the country while adjudication runs its course.
Who is affected
The memo is not limited to H-1B holders. According to Greenspoon Marder’s analysis, the policy covers F-1 students, B-1/B-2 visitors, temporary workers, H-1B and L-1 dual-intent visa holders, visa overstays, and humanitarian parolees.
TIME’s breakdown of the 783,000 people who adjusted status in the 2024 fiscal year: 53% were family members of US citizens or lawful permanent residents, with the remainder divided among refugees, asylees, and employment-based applicants.
Two policies, one squeeze
This memo does not exist in isolation. In September 2025, the White House issued a Presidential Proclamation restricting H-1B entry for workers outside the US, requiring employers to pay $100,000 per petition. That order throttled new talent inflow. The May 22 memo chokes the retention pipeline for researchers already in the country.
Together, the two policies compress both ends of the foreign-talent channel. Employers face a $100,000 surcharge to bring in new H-1B workers. Existing employees who need to convert to permanent residency must now leave the country with no guaranteed return date. For workers from the 39 countries covered by the expanded December 2025 travel restrictions, forced departure could mean years or decades outside the US with no assured path back.
”Extraordinary circumstances” is undefined
The memo does not define the term that now controls access to in-country green card processing. According to PermTrack’s analysis, officers have case-by-case discretion. Possible exceptions include serious medical conditions preventing travel, minor US citizen children who cannot safely travel, or national security and law enforcement considerations.
These are informed guesses at what might qualify. The standard is left to individual adjudicators, which means outcomes will vary by officer, by field office, and by the political climate at the time of adjudication. This is the kind of discretionary framework that generates litigation.
Why AI labs are paying attention
Daniel Kanstroom, a law professor at Boston College, told TIME that the memo’s main purpose is likely “to reduce the number of green cards that are approved.” For the high-skill Indian workers already facing multi-year backlogs in the EB-2 and EB-3 categories, forcing overseas processing adds another barrier with no guaranteed return timeline.
Every foreign researcher who departs for consular processing is a researcher who cannot work for months or years, with no certainty of return. The immigration risk that employers previously absorbed through the AOS pathway now falls entirely on the employee. For a lab trying to retain a senior research scientist who has been in the US for six years on an H-1B, the message is blunt: your employee can stay and wait in legal limbo, or leave and hope the consulate re-admits them. There is no good option.
What attorneys are advising
Immigration lawyers are still parsing the memo. The absence of defined criteria for “extraordinary circumstances” means there is no clear test clients can prepare for. PermTrack’s guidance suggests that applicants who can document medical hardship or dependent-care constraints may have the strongest case for an AOS exception, but the standard is speculative until USCIS issues implementing guidance or adjudicators start rendering decisions.
The statutory problem
Congress authorized adjustment of status in INA Section 245. H-1B visas are statutorily designed for “dual intent”, allowing holders to pursue permanent residency without jeopardizing their nonimmigrant status. The administration’s framing of AOS as a loophole that strayed from “original legislative intent” is difficult to square with the fact that Congress “specifically allowed for adjustment of resident status in Section 245,” as TIME notes.
Shifting adjudication from domestic USCIS review to consular processing also shifts the legal framework. Forcing applicants into the consular lane removes a layer of legal recourse. This is a feature of the policy, not a side effect.
Legal challenges are likely. The question is whether courts treat the memo as a permissible exercise of prosecutorial discretion or as a constructive rewrite of statutory text that Congress did not authorize. That distinction will determine whether the policy survives contact with the judiciary.
Frequently Asked Questions
Did USCIS issue any follow-up after the backlash?
USCIS spokesman Kahler released a statement that applicants who “provide an economic benefit or otherwise are in the national interest will likely be able to continue on their current path.” This softens the memo’s plain language but is not binding guidance — the written memo governs adjudication, not a press comment, and officers retain full case-by-case discretion.
Were green card approvals already dropping before this memo?
According to David Bier at the Cato Institute, DHS had already slashed green card approvals in half over the year preceding the memo. He characterized the agency as having “gone from the quiet-quit to walking out on 1.2 million green card applicants” — the May 22 directive formalizes a contraction already well underway.
How does consular processing strip legal recourse compared to AOS?
Consular officers’ decisions are “virtually unchallengeable” in court, whereas domestic USCIS denials can be appealed through the Administrative Appeals Office and then federal courts. Forcing applicants into the consular lane doesn’t just change geography — it removes the primary mechanisms for judicial review of a green card denial.
What about refugees and asylees — are they affected too?
Of the 783,000 people who adjusted status in FY2024, 28% were refugees or asylees, a group whose path to permanent residency has long been handled almost entirely through in-country AOS. Many fled persecution in their countries of origin; forcing them into consular processing abroad creates a scenario where applicants who cannot safely return home must nonetheless depart the US to pursue the green card they were statutorily eligible for.
Can an H-1B worker who leaves for consular processing come back if things go wrong?
The September 2025 proclamation imposes a $100,000-per-petition surcharge on H-1B entries from outside the US. If a worker departs for consular processing, their H-1B status lapses, and re-entry would fall under the new fee regime — effectively making the departure irreversible for most individuals, since few employers will absorb a six-figure surcharge on top of the existing petition costs.