US Citizenship and Immigration Services (USCIS) has announced a new policy memo which requires foreigners in the country seeking a
green card to now leave America and apply in their home country. In the announcement, USCIS Spokesman Zach Kahler said “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”. "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," the agency said in a statement.
Immigration Law firm Manifest Law has published a full breakdown of the memo explaining what has changed for H1-B, L-1, F-1 OPT visa holders working toward a Green Card. Take a look
What the New USCIS Memo Means for Your Workforce
On May 21, 2026, U.S. Citizenship and Immigration Services (USCIS) released policy memorandum PM-602-0199 instructing officers to apply a stricter standard when reviewing Green Card applications filed from inside the United States.
The message to officers: applying for a Green Card in the U.S. —a process 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 means that most foreign nationals currently working in the US on visas considered non-dual intent, that is, the foreign national is expected to leave once the purpose of the visa is served (e.g., F-1 OPT/STEM OPT) or those who are visa waived (e.g., ESTA), they will need to apply for adjustment of status from an embassy or consulate outside of the U.S., unless they can show extraordinary circumstances, which is not defined by the memo.
Important caveat: This memo is likely to be challenged in court. It provides no guidance on implementation, including timelines or criteria beyond the factors already in the law. Most pressingly, no effective date was listed in the memo. Until the courts weigh in, or USCIS issues further guidance, it is not clear how officers will apply this in practice. But it is worth understanding what it could mean for your workforce.
What this memo says
USCIS has always had the legal authority to deny a Green Card application, even if the applicant meets every requirement, based on discretion, that is 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 being given an explicit list of negative factors to weigh 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. This is described in the memo 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 including family ties and moral character, meaning the positive factors have to be strong enough to outweigh the fact that they chose to stay in the U.S. rather than apply from abroad-expect USCIS to apply this quite stringently given the tone of the memo.
What this means for your workforce
- For HR and mobility teams, the practical implication is that Green Card filings will require more from you and your employees.
- For most employment-based cases, this isn't uncharted territory. Immigration attorneys should already build filings that document an applicant's ties to the U.S., their compliance record, and why their case deserves to move forward.
But the level of scrutiny has changed. Filings can no longer be treated as routine.
Attorneys will now need to make a stronger case for every I-485 application as to why this person should be allowed to apply for their Green Card from inside the U.S. rather than having to leave, and even more 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 needs to be supported with evidence.
Here's what it means for specific populations. Remember: Most cases should be 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, this is the most consequential line:
"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 now cannot assume that this pathway is automatic and administrative only.
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 marries a U.S. citizen and files for a Green card. In the past, this was a straightforward case; but they were arrested for disorderly conduct a few years ago. Even if their 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 not anymore.
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 are representing to an officer that they intended to return home.
The memo instructs officers to weigh that representation when those same students later file for a Green Card. If you're employing people on OPT who are on a path toward permanent residence, this is worth 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 their work is in the national interest. It's 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 won't necessarily be denied, but it will need to explain that shift directly, and explain circumstances for why you are 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 the applicant has built a life in the U.S-works in their favor. Deep positive U.S. ties, long employment history, children raised here, consistent compliance with relevant immigration law, and spouses with established careers can be evidence for why this person should be allowed to apply from inside the U.S. However, that evidence should 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, flag it to your immigration counsel before filing.
Follow Us On Social Media