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On Aug. 13, 2026, the Board of Immigration Appeals (BIA) issued a precedential decision in Matter of Delcarmen-Lara, overruling Matter of Arrabally and Yerrabelly (2012). The BIA held that travel outside the United States pursuant to a grant of advance parole constitutes a “departure” for purposes of the unlawful presence inadmissibility provisions under INA Section 212(a)(9)(B). 

For more than a decade, Arrabally allowed individuals who had accrued unlawful presence to travel on advance parole without triggering the three-year or 10-year unlawful presence bars upon return. The BIA has now rejected that interpretation, concluding that the statute does not provide an exception for travel authorized through advance parole. 

What Changed? 

The BIA found that the plain language of INA Section 212(a)(9)(B) treats a departure under advance parole the same as any other departure from the United States. As a result, individuals who have accrued more than one year of unlawful presence may become subject to the 10-year inadmissibility bar upon departing the United States, even if travel is authorized through advance parole. 

Why It Matters 

This decision is relevant to individuals who have accrued unlawful presence and are considering international travel on advance parole. The ruling may affect: 

  • Adjustment of status applicants who entered the United States without inspection or who previously accrued unlawful presence and rely on a subsequent advance parole entry to pursue a green card; 
  • DACA recipients who travel pursuant to advance parole; 
  • TPS beneficiaries who travel on advance parole; 
  • Individuals with prior periods of unlawful presence; and 
  • Anyone considering international travel while relying on advance parole as part of a future immigration strategy. 

The decision does not affect all adjustment applicants equally. The greatest impact is likely on individuals who accrued sufficient unlawful presence to trigger the three-year or 10-year bars and who previously relied on Arrabally to travel abroad without immigration consequences. 

Prospective Application 

The BIA determined that the new rule will apply prospectively, recognizing that many individuals relied on Arrabally when making travel decisions. As a result, individuals who previously traveled on advance parole in reliance on Arrabally may be protected from the impact of this ruling. 

The precise scope of the BIA’s prospective application holding may be addressed in future litigation and agency guidance. 

Practical Implications 

Before traveling on advance parole, individuals with any history of unlawful presence should consider consulting immigration counsel to evaluate the potential consequences of departure. Travel that was previously considered low-risk under Arrabally may now trigger inadmissibility and complicate future adjustment of status or other immigration benefits. 

Key Takeaways 

  • The BIA overruled Matter of Arrabally and Yerrabelly. 
  • Travel on advance parole is now considered a “departure” for purposes of INA Section 212(a)(9)(B)(i)(II). 
  • Individuals with one year or more of unlawful presence may trigger the 10-year inadmissibility bar by departing the United States, even on advance parole. 
  • The decision applies prospectively rather than retroactively. 
  • Individuals with prior unlawful presence should evaluate the risks of international travel before using advance parole. 

U.S. Citizen and Immigration Services (USCIS) recently has issued some Advance Paroles with errors. The Advance Parole is a travel authorization document that permits certain applicants for adjustment of status (green card) or refugee/asylee status to return to the United States. It must be approved prior to travel outside the United States. 

Recently, USCIS has issued some Advance Parole documents indicating Temporary Protected Status (TPS), instead of the correct adjustment of status or refugee/asylee process designation. The TPS parole is only granted to an individual who is recognized in temporary protected status.

The Advance Parole document that is received should be carefully reviewed and checked to ensure it is issued pursuant to the correct classification. Adjustment of status or refugee/asylee Advance Parole documents should not include a TPS parole designation.

On February 8, 2019, the Office of the Citizenship and Immigration Services Ombudsman (Ombudsman’s Office) provided an inside look at its innerworkings with the United States Citizenship and Immigration Services (USCIS). Created by section 452, of the Homeland Security Act of 2002, the Ombudsman’s Office assists individuals and employers who need to resolve a problem with USCIS and to make recommendations to fix systemic problems and improve the quality of services provided by USCIS.

USCIS began denying applications for renewals of Advance Parole (AP) documents, over a year ago, if applicants traveled internationally. Although authorized by law, this change in policy was followed by re-filing of thousands of AP renewal applications, emergency AP filings at local USCIS centers and resulted in strain of the USCIS resources.

On Nov. 16, 2018, during Ombudsman’s Office Annual Conference, USCIS Director, L. Francis Cissna confirmed that USCIS will end its practice of denying pending AP applications when applicants travel internationally.  This unexpected, yet welcomed change of policy was a result of the collaboration between USCIS and Ombudsman’s Office. The two agencies met numerous times with USCIS to discuss the issues and practical implications associates with AP denials.

To date, the USCIS website indicates that if an individual has an approved AP document while a second one is pending, they may travel on the approved AP document, provided the AP document is valid for the entire duration of the time abroad. In this case, the pending AP extension will not be considered by the USCIS as abandoned.

For more information on advance parole, click here.

Greenberg Traurig Shareholder Ian Macdonald was recently quoted in the Law360’s article, “Attorneys Sound the Alarm over Advance Parole Denials,” discussing an increase in advance parole (AP) renewal denials. Attorneys have noticed a shift in the U.S. Citizenship and Immigration Services’ (USCIS) handling of AP applications, particularly with an increase of renewal denials as early as March of this year. To read the entire article, please click here.

For more information on Advance Parole, click here.

U.S. Citizenship and Immigration Services (USCIS) is denying Advance Parole (AP) applications when an applicant travels internationally while the application is pending with USCIS.  This represents a big adjudication shift by USCIS, which has for several years allowed certain AP applicants to travel abroad while waiting for USCIS to approve an AP application.  By making this adjudication change, USCIS is reverting back to a literal reading of the law as outlined in the Form I-131’s instructions, rather than allowing greater freedom of movement for individuals who are about to become green card holders.  These concerns are amplified when you consider this new practice together with more recent adjudication restrictions posed by the Buy American and Hire American Executive Order with USCIS and consular posts around the globe. In a nutshell, international travel for certain foreign nationals who are lawfully in the United States has become even more difficult.

By way of background, when filing for adjustment of status in the United States, green card applicants generally file concurrently an application for advance parole to permit international travel while the green card application is pending adjudication with USCIS.  Prior to this policy change, failure to secure an advance parole prior to travel abroad resulted in the abandonment of the underlying adjustment of status unless an individual held an H-1B, H-4, L-1, L-2, K-3 fiancé, or V visa. These visa categories allow individuals to have the “dual-intent” of being temporarily present in the United States on a visa, while simultaneously pursuing a green card. Under this new USCIS policy, holders of H-1B, H-4, L-1, L-2, K-3 fiancé, or V visas will have to wait for their advance parole applications to be approved before traveling abroad or their advance parole applications will be denied by USCIS.  This is significant because obtaining an advance parole during the green card process allows green card applicants to bypass the process of obtaining a visa stamp at a U.S. Consulate abroad, thereby avoiding the lengthy visa appointment wait times and possible administrative processing delays that can take months to clear while the applicant is stuck abroad.  With consular officers now taking into consideration the Buy American and Hire American Executive Order, which increases the risk of visa denials resulting in individuals being unable to return to the United States, the advance parole process provides significant travel benefits.

Increasingly, however, USCIS is denying advance parole applications for applicants who travel outside the United States while their advance parole applications are still under review by USCIS, even if the applicant holds a dual-intent visa.  In the denial notice, USCIS is stating that the advance parole applications are being denied due to abandonment resulting from travel abroad.  While denying the advance parole application in these circumstances is technically proper, USCIS had a long-standing practice of approving advance parole applications even if the applicant travels abroad, so long as the advance parole applicant held a dual-intent visa.  Specifically in the denial notices, USCIS is referencing page 6 of its Form I-131 instructions, which states ““[i]f you depart the United States before the Advance Parole Document is issued, your application for an Advance Parole Document will be considered abandoned.”  Of particular concern, under this new USCIS policy, USCIS will deny an advance parole application due to abandonment even when the advance parole applicant travels using a currently valid advance parole.

This new development will hamper green card applicants and those companies that employ them because advance parole applicants must remain in the United States until the adjudication of their advance parole application, which is consistently taking 90-120 days.  For those companies who rely on L-1A multi-national managers or executives, or L-1B specialized-knowledge workers who are also green card applicants, this new USCIS practice may restrict the company’s ability to manage or conduct its global business because these workers are faced with a “soft” travel restriction.   The companies and L-1 workers, along with other workers who have non-immigrant visas, are faced with the decision of obtaining a new visa stamp at a U.S. Consulate abroad to return to the United States, which may be put under administrative processing or denied, or waiting the full 90-120 days before traveling abroad.

Click here for more on issues related to Advance Parole.

It has been reported that President Trump’s administration is likely preparing to effectuate additional changes affecting immigration issues.  Specifically, in addition to the Executive Order executed on Jan. 27, 2017, the administration is reportedly working on additional Executive Orders, a released draft of which addresses the availability and use of advance parole, among other issues which pertain to employment-based immigration.  Advance parole enables return to the United States after international travel for those who are in the process of applying for permanent residence while living in the United States.  Parole is also available to other classes of foreign nationals, including asylees, as well as those granted this ability via the Deferred Action for Childhood Arrivals program.  Based on the released drafts of the Order, it is possible that, when signed and implemented, it could severely curtail the ability of foreign nationals to be able to re-enter the United States after international travel using Advance Parole.  Therefore, until further information is available, employers may consider advising their foreign national employees fitting the above description to refrain from international travel at this time.  Likewise, foreign nationals who have applied for or currently have valid advance parole should consider remaining in the United States until further information regarding the Order is available.

Importantly, those individuals who are maintaining temporary visa status such as H-1B, L-1A, or L-1B are not subject to this caution.  In fact, because the H-1B and L-1 regulations specifically allow for permanent intent while in the United States, foreign nationals are able to continue to maintain and extend these visa statuses even while their green card applications are pending in the United States.  Therefore, they have the ability to utilize their valid H-1B and L-1 visas for international travel, rather than the advance parole issued as part of the green card application process.  Based on this, as well as on the draft language of the administration’s Executive Order, foreign nationals and employers may wish to consider ensuring that, where possible, H-1B or L-1 visa status is extended throughout the green card application process and until green card approval.  Notably, those foreign nationals in the United States who were in F-1, J-1, O-1, H-1B1, E-1, E-2, E-3, TN, or a number of other visa statuses at the time of their green card applications will not be able to maintain their visa status throughout the green card application travel if they intend on traveling internationally, because of the temporary intent requirements of these visas.

Please contact your GT attorney to discuss temporary visa and green card application processes.  GT will continue to follow and report any developments with regards to the related Executive Order.

 

The Trump administration has prioritized immigration policy, with new developments emerging on an almost weekly basis. From changes affecting visa processing and adjustment of status to increased vetting, enforcement initiatives, employment authorization, humanitarian programs, and agency adjudication standards, employers and foreign nationals are navigating a rapidly shifting immigration landscape.

The latest development comes from U.S. Citizenship and Immigration Services (USCIS). On Aug. 5, 2026, USCIS updated its Policy Manual to reinforce the principle that applicants and petitioners should establish eligibility for an immigration benefit at the time of filing. The agency has also restored broader discretion for officers to deny certain applications and petitions without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID).

This represents a departure from the approach adopted in 2021, under which USCIS officers were generally instructed to issue an RFE or NOID when additional evidence could potentially establish eligibility. Under that policy, an incomplete filing did not necessarily result in denial without first allowing the applicant or petitioner an opportunity to supplement the record.

What Changed?

Under the August 5 policy update, USCIS emphasizes that the burden rests with the applicant or petitioner to establish eligibility and submit required initial evidence at the time of filing. USCIS form instructions identify the initial evidence required for particular benefit request, and officers once again have broader discretion to deny a filing without providing an opportunity to cure deficiencies through an RFE or NOID. This approach mirrors a policy USCIS implemented during the first Trump administration in 2018, which similarly expanded adjudicators’ discretion to deny filings without first issuing an RFE or NOID where required initial evidence was missing or the record did not establish eligibility.

The 2026 policy is effective immediately and applies to benefit requests pending or filed on or after Aug. 5, 2026, except where regulations or other USCIS policies provide otherwise.

USCIS has characterized the change as an effort to discourage frivolous or substantially incomplete filings and prevent applicants from submitting what the agency describes as “placeholder” applications to obtain benefits associated with a pending filing, such as employment authorization.

The Practical Message: The Initial Filing Matters More Than Ever

For employers, investors, foreign nationals, and their counsel, the practical consequence is straightforward: assuming that an RFE will provide an opportunity to fix an incomplete filing carries increasing risk. An RFE should not be viewed as part of ordinary case preparation. Under the prior policy, however, applicants and petitioners had greater assurance that USCIS would request additional evidence where a potentially curable deficiency existed. That assurance has now been substantially reduced.

Petitioners and applicants should approach the initial filing as though it may be their only opportunity to establish eligibility. Required initial evidence should be carefully identified, documentation should be reviewed for inconsistencies or gaps, and legal arguments should be developed before submission rather than reserved for a possible RFE response.

What This Means for Employment-Based Immigration

The policy has implications across employment-based immigration categories. H-1B, L-1, O-1, immigrant petitions, and adjustment applications frequently involve complex factual records, and a missing document or inadequately developed eligibility argument can materially affect adjudication outcomes.

Employers should be cautious about filing cases primarily to meet a deadline when key evidence remains outstanding. While timing pressures are common in immigration practice, the new policy increases the importance of determining whether the record submitted at filing independently demonstrates eligibility. It also reinforces the need for employers and foreign nationals to respond promptly to requests from immigration counsel for supporting documentation. Delays in providing corporate records, employment documentation, educational evidence, or other required materials until shortly before a filing deadline may create greater risk in the current adjudicatory environment.

Significance for EB-5 Investors

The timing of this policy change is notable for EB-5 investors preparing petitions ahead of the Sept. 30, 2026, grandfathering deadline under the EB-5 Reform and Integrity Act.

EB-5 petitions are inherently document-intensive. Investors may need extensive documentation establishing the lawful source and path of investment funds, while the underlying project and regional center filings involve their own substantial evidentiary requirements. With September 30 approaching, investors seeking to preserve grandfathering protections may feel pressure to file quickly. The new USCIS policy, however, makes the distinction between filing quickly and filing completely important.

Investors should not assume that deficiencies in source-of-funds documentation or other required evidence can be addressed later through an RFE. Cases should be initiated sufficiently in advance to permit counsel to review bank records, tax documents, employment and compensation records, property transactions, gifts, loans, business proceeds, and other evidence relevant to the particular source of investment capital. The deadline remains important, but so does filing a petition capable of establishing eligibility based on the record submitted to USCIS.

Adjustment of Status Filings Also Require Care

The policy applies equally to adjustment of status applications, particularly as USCIS continues to increase scrutiny of adjustment filings and the circumstances surrounding an applicant’s eligibility. Foreign nationals filing Form I-485 together with related applications for employment authorization and advance parole should make certain that the adjustment application itself is complete and supported by required initial evidence.

The fact that a pending adjustment application may provide collateral benefits makes it important not to treat the underlying filing as a placeholder. Immigration strategies built around obtaining an Employment Authorization Document (EAD) or other interim benefits from a pending application should be evaluated carefully. The administration has identified the use of incomplete filings to obtain associated immigration benefits as one of the concerns underlying the new policy.

Another Development in a Rapidly Changing Immigration Environment

This policy should not be viewed in isolation. The administration has maintained a focus on immigration, and policy changes are occurring with frequency across USCIS, the Department of State, Customs and Border Protection, Immigration and Customs Enforcement, and the Department of Homeland Security. Immigration policy is evolving not only through legislation or formal rulemaking, but also through policy memoranda, executive actions, agency guidance, adjudication practices, and litigation.

For employers and foreign nationals, immigration planning should not be static. Strategies that were appropriate months ago — or even weeks ago — may warrant reconsideration as new rules, policy memoranda, executive actions, litigation developments, and adjudication standards emerge. The Aug. 5 USCIS policy update reflects that changing environment and carries a procedural message: applicants and petitioners should not rely on USCIS to provide a second opportunity to establish eligibility. Preparation before filing remains essential.

In May 2026, United States Citizenship and Immigration Services (USCIS) issued a policy memorandum signaling a shift in how employment-based permanent residence cases may be processed. The memorandum encourages adjudicators to deny adjustment of status (Form I-485) applications rather than issue requests for evidence (RFEs) in appropriate cases, with the expectation that many applicants could instead pursue immigrant visa processing abroad through U.S. consulates.

Considered alongside the current state of the Department of State (DOS), the policy raises an important question: can DOS realistically absorb an increase in these cases?

Recent reports suggest the answer is uncertain. Also see our June 2026 blog post on early implementation trends.

A Department Under Strain

A recent Financial Times article describes challenges facing the DOS. More than half of U.S. ambassadorial positions reportedly remain vacant, staffing has been reduced by more than 20%, and over 3,000 employees have departed. Career diplomats have been replaced at historically low rates, while consular sections – already managing high visa demand – are expected to operate with fewer personnel and reduced institutional experience.

Although embassies continue operating under Chargés d’Affaires, leadership vacancies and workforce reductions affect efficiency, consistency, and the DOS’ capacity to process complex immigration matters.

For years, employment-based applicants have generally viewed adjustment of status as the more predictable path to permanent residence because it allows them to remain in the United States while USCIS adjudicates the case. If a growing number of applicants are instead required to complete processing through U.S. consulates overseas, the operational realities at DOS become important.

What This Could Mean for Employment-Based Applicants

Longer Processing Times

Shifting cases from USCIS to DOS may transfer existing backlogs from one agency to another rather than reduce overall processing times.

Employment-based immigrant visa cases often require coordination across multiple government agencies, including the National Visa Center and the applicable U.S. embassy or consulate. Reduced staffing and fewer available interview appointments could lengthen the time required to complete permanent residence processing.

For employers planning workforce transitions or international recruitment, these delays may create uncertainty.

Greater Risk of Status Gaps

A key advantage of adjustment of status is that applicants may remain lawfully present in the United States while the application is pending.

Applicants pursuing consular processing, however, face a different set of challenges.

If an individual reaches the end of their underlying nonimmigrant status before an immigrant visa interview becomes available, questions may arise regarding whether they can lawfully remain in the United States while waiting for overseas processing. Depending on the facts of the case, applicants may need to maintain an independent nonimmigrant status for a longer period than originally anticipated.

This is particularly important for employees whose H-1B, L-1, E-2, TN, or other temporary status may be approaching expiration.

Employment Authorization May No Longer Be Available

Applicants adjusting status in the United States generally become eligible to obtain employment authorization documents (EADs) and advance parole while their Form I-485 is pending.

Applicants pursuing immigrant visa processing abroad generally do not receive these interim benefits.

As a result, employers may need to rely on extensions of underlying work-authorized status. Where extensions are unavailable, interruptions in employment authorization are a possibility worth planning for.

Travel and Mobility Challenges

Adjustment applicants typically receive advance parole allowing international travel while their green card application is pending.

Consular processing requires applicants to coordinate travel, visa interviews, medical examinations, and international logistics. Delays in visa issuance following an interview can result in employees remaining abroad for an extended period, disrupting business operations and personal obligations.

Variability in Visa Adjudications

Reduced staffing may also affect consistency.

Officers handling complex employment-based immigrant visa cases with less experience may produce greater variation in adjudications. Applicants and employers should anticipate more detailed interview preparation and more comprehensive supporting documentation.

Practical Considerations for Employers

Employers sponsoring permanent residence should evaluate whether employees have a viable strategy for maintaining work authorization if processing extends beyond original expectations.

Considerations include:

  • Reviewing expiration dates for underlying nonimmigrant status.
  • Identifying employees who may require additional H-1B, L-1, or other status extensions.
  • Preparing for longer overseas processing timelines.
  • Assessing business continuity if key personnel must remain abroad pending visa issuance.
  • Building additional time into onboarding and workforce planning.

Looking at the Broader Picture

These developments may represent more than a temporary adjustment.

If USCIS increasingly directs applicants toward consular processing while DOS continues operating with reduced staffing and leadership vacancies, employment-based immigration processing may experience changes affecting where cases are adjudicated and the timing of permanent residence processing.

Immigration strategies that assumed adjustment of status as the default path warrant review, with greater attention to maintaining nonimmigrant status, preserving uninterrupted work authorization, and preparing for longer and more complex consular processing.

As federal immigration agencies continue to evolve, permanent residence planning will benefit from evaluating how the immigration system functions as an interconnected whole rather than focusing on any single agency’s policy change in isolation.

In this episode of the Immigration Insights podcast, Greenberg Traurig Global Immigration and Compliance Group Co-Chair Practice Kate Kalmykov and Shareholder Jennifer Hermansky discuss the writ of mandamus – a federal litigation tool available under the Administrative Procedure Act that can be used to compel government action when immigration agencies unreasonably delay adjudication of pending cases.

Their discussion covers the resurgence of mandamus filings following COVID-19-related processing slowdowns across USCIS, the Department of Labor, and consular posts worldwide. 

The episode gives particular attention to EB-5 cases, including the distinct statutory and regulatory frameworks governing I-526/I-526E petitions, I-829 petitions, and I-956F project approvals, and how the EB-5 Reform and Integrity Act of 2022 has affected the mandamus analysis. 

Kate and Jen also address the doctrine of consular non-reviewability and the challenges of using mandamus to address delays at overseas embassies and consulates. They also emphasize throughout that mandamus is a tool that must be used prudently. 

The episode concludes with a broader look at mandamus applications across family-based immigration, naturalization, asylum, and employment authorization contexts, as well as a discussion of emerging processing time concerns for EAD cards and advance parole documents.

When USCIS issued its May 21 memorandum emphasizing consular processing as the preferred pathway for many intending immigrants seeking permanent residence, the immigration community began raising questions. Would adjustment of status (AOS) applications become more difficult to approve? Would USCIS begin issuing widespread requests for evidence (RFEs) challenging applicants’ eligibility to adjust status in the United States? Would employment authorization and travel documents be affected? Would foreign nationals already pursuing AOS face increased scrutiny at interviews?

Now two weeks later, while it remains too early to draw definitive conclusions, implementation so far has been more measured than many initially anticipated. As is often the case with major immigration policy announcements, the practical impact of a memorandum depends not only on the language of the policy itself but also on how adjudicators interpret and apply that guidance in individual cases. Patterns are beginning to emerge, though the type of widespread disruption some stakeholders anticipated has not yet materialized. For a discussion of the memorandum, stream GT’s Immigration Insights Podcast Episode 25.

A Brief Reminder: What Did the Memorandum Do?

The memorandum signaled USCIS’s preference that many intending immigrants pursue immigrant visa processing abroad through U.S. consulates rather than AOS from within the United States. For decades, AOS has served as a critical pathway allowing eligible foreign nationals already present in the United States to complete the permanent residence process without departing the country. The memorandum raised concerns because it appeared to encourage greater scrutiny of adjustment filings and potentially shift adjudicative discretion toward consular processing in certain circumstances. Because AOS offers significant practical advantages – including the ability to remain in the United States while a case is pending, obtain employment authorization, and avoid many uncertainties associated with overseas visa processing – the memorandum generated concern among employers, foreign nationals, and immigration practitioners.

What Are We Seeing So Far?

While every case is unique, several trends have emerged during the first two weeks following issuance of the memorandum.[1]

Adjustment Applications Continue to Be Approved

Many AOS applications filed before the memorandum was issued continue to be approved, including for applicants in valid F-1, H-1B, and L-1 status. To date, there has been no indication of a blanket slowdown or freeze affecting adjustment applications that were already pending when the memorandum was released.

Employment Authorization and Travel Documents Continue Moving Forward

There are continued approvals of employment authorization documents (EADs) and advance parole (AP) applications filed in connection with AOS cases.

This is significant for applicants relying on adjustment-based work authorization or travel permission while awaiting a decision on their green card applications.

Adjustment Interviews Continue

Adjustment interviews at local USCIS field offices are continuing without apparent interruption. There is variation in how officers appear to be approaching the memorandum. In some interviews, applicants have reported that the memorandum was not discussed at all, with officers focusing on traditional adjustment issues such as admissibility, maintenance of status, employment history, family relationships, and application accuracy. In other interviews, applicants have reported being asked why they chose AOS rather than consular processing, a line of questioning consistent with the language and policy objectives reflected in the memorandum. At this stage, these questions may be exploratory rather than outcome-determinative. The fact that some officers are raising the issue suggests that field offices are aware of the guidance and may be incorporating it into interview practices.

Limited Reports of Requests for Evidence

One concern following the memorandum was whether USCIS would begin issuing RFEs requiring applicants to justify why AOS is appropriate in lieu of consular processing. While practitioners around the country have reported receiving such RFEs in some cases, our office has not yet received any RFEs specifically seeking that explanation. The relatively short period since the memorandum’s issuance makes it difficult to assess whether such requests will become more common. Historically, USCIS implementation of major policy changes often varies by field office, service center, and adjudicator before more consistent practices emerge. As additional cases move through the system, we may gain greater insight into whether these RFEs represent isolated examples or the beginning of a broader adjudication trend.

No Significant Travel Issues Reported

Travel concerns were another area of uncertainty following the memorandum. Many applicants questioned whether travel on AP or travel in H-1B and L-1 status could become more complicated if USCIS adopted a stronger preference for consular processing. To date, we have not received reports from clients indicating unusual travel-related complications attributable to the memorandum.

A Growing Interest in Preserving Consular Processing Options

One practical response is increased interest in maintaining flexibility. Some individuals with approved immigrant petitions are electing to file Form I-824, Application for Action on an Approved Application or Petition, to preserve the possibility of consular processing should they decide – or be required – to pursue that route in the future. While filing Form I-824 is not necessary or advisable in every case, it reflects a broader trend among applicants seeking to keep multiple options available while the long-term impact of the memorandum becomes clearer. For certain individuals, particularly those with international travel obligations, complex immigration histories, or concerns about future policy developments, preserving optionality may be a prudent strategic consideration.

Considerations for Employers and Foreign Nationals

The memorandum is significant, but the implementation data available today does not support the conclusion that AOS is no longer viable or that applicants should automatically abandon pending or planned adjustment filings in favor of consular processing.

Each case warrants careful evaluation on its own merits. Factors such as immigration status, travel needs, country of citizenship, visa availability, processing times, family circumstances, and long-term immigration objectives should continue to drive strategic decision-making. For many applicants, AOS may remain the preferred and most practical path to permanent residence. For others, preserving consular processing as a backup option may provide additional flexibility. Immigration strategy is most effective when tailored to the individual circumstances of the applicant.

Looking Ahead

The first two weeks following the memorandum have provided some initial data points, but many questions remain unanswered. As additional cases move through interviews and adjudication, we expect to gain greater visibility into how field offices and service centers interpret the guidance. There may also be further policy clarification from USCIS, additional stakeholder engagement, new adjudication trends, and potentially litigation that could affect implementation. For now, AOS cases continue to move forward – applications are being approved, interviews are being conducted, employment authorization and travel documents continue to be issued.

[1] Disclaimer: The observations discussed in this blog post are based on our firm’s cases and discussions with colleagues throughout the immigration bar during the first two weeks following issuance of the memorandum. These observations are anecdotal in nature, may not be representative of all USCIS offices, adjudicators, or case types, and should not be viewed as predictive of any individual case outcome.