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On Sept. 6, 2025, the U.S. Department of State issued updated guidance directing that nonimmigrant visa (NIV) applicants (E, F, H, J, L, O, etc.) must generally schedule their visa interview appointments at a U.S. embassy or consulate in their country of nationality or legal residence.

For nationals of countries where routine NIV processing is not available, the guidance specifies designated embassy or consulate posts.

Below is an overview of what employers and foreign national employees should be aware of under the new policy, and practical considerations to help mitigate its impact.

What the Policy Says

Applicants must schedule interviews in their country of nationality or country of residence. If applying based on residence (rather than nationality), the applicant must be able to demonstrate legal residence in that country. For certain countries without routine visa operations, the Department of State has designated specific embassies or consulates (for example, Iran → Dubai; Venezuela → Bogotá; Russia → Astana or Warsaw; Ukraine → Krakow or Warsaw; etc.). Visa application fees remain non-refundable and non-transferable, even if the applicant is found ineligible due to interview location. Applicants applying outside of their country of nationality or residence may face longer wait times for appointment scheduling. Existing appointments generally will not be cancelled. Exceptions apply for diplomatic and official visas, certain UN-related visas, and humanitarian or medical emergencies.

Practical Implications for Employers and Employees

This policy shift has several practical implications for companies sponsoring nonimmigrant visas and the foreign nationals they employ.

Applicants may face longer appointment backlogs in their country of residence or nationality, since the option of scheduling in third countries with shorter wait times has been curtailed. Employers should factor in potential delays when planning start dates, project timelines, and mobility schedules.

Employees applying based on residence must provide evidence of legal residence in that country (for example residence permits, lease agreements, local tax records, utility bills, or visa stamps). Employers and immigration teams may wish to assist employees in gathering this documentation before scheduling.

Some employees temporarily abroad for business or tourism, but not legally U.S. residents, will need to return to their country of residence (or designated processing post) to apply, potentially incurring additional travel, lodging, and logistical expenses. Employers may wish to budget for or mitigate these costs in their mobility or relocation planning.

If an applicant mistakenly schedules an appointment in a third country without satisfying the residence requirement, there is risk of delays, additional scrutiny, or loss of the processing fee. Employers should coordinate with counsel or local embassy guidance when booking appointments to enhance compliance.

HR and immigration teams should consider reviewing internal visa onboarding or mobility checklists, updating processes, training employees and mobility stakeholders about the new requirement, verifying residence eligibility, identifying appropriate consular posts, and building buffer time into planning cycles.

Individuals with existing appointments at embassies or consulates where they are applying as third-country nationals may wish to consider cancelling those appointments and rebooking in their home country. Immigration practitioners are reporting that consular officers in some locations are informing applicants they must process their cases in their home country. This is not being applied consistently at all consulates, which means applicants may face uncertainty or inconsistent treatment if they proceed with a third-country appointment.

Employer Considerations

To address this change proactively, employers may wish to consider:

  1. Reviewing all pending or upcoming NIV cases and confirming whether the interview location aligns with the new requirement;
  2. Ensuring employees gather residence evidence in advance of booking appointments;
  3. Starting visa planning earlier to accommodate possibly longer appointment wait times;
  4. Incorporating additional buffer time in project and mobility timelines, especially when international relocation or training assignments are involved;
  5. Budgeting for potential extra travel or lodging costs if employees must return to their country of residence or designated processing post;
  6. Advising employees with third-country appointments to cancel and rebook in their home country, given reports of consular officers enforcing the residence-based rule;
  7. Coordinating with local consular resources or outside counsel in the countries involved to monitor appointment availability and evolving consular practices; and
  8. Communicating the change clearly to employees, especially those on temporary assignments or remote postings, so they understand the new constraints and can plan accordingly.

Conclusion

The September 2025 Department of State directive requiring NIV applicants to interview in their country of nationality or legal residence introduces a meaningful shift for U.S. employers and their foreign national workforce. While the policy aims to localize adjudication and improve the alignment of interview processing with applicants’ residence, it also brings potentially new complexities: logistical planning, documentation, scheduling delays, and costs. Employers sponsoring nonimmigrant visas should consider treating this as a new baseline for visa planning. Early coordination, intentional timeline buffers, logistical planning for potential travel burdens, and clear communication with employees may be helpful in minimizing disruptions and ensuring timely visa processing.

The State Department updated its Foreign Affairs Manual on intent to depart and residence abroad requirements for F-1 and M-1 students. The new guidance clarifies that although F-1 and M-1 students are required to show a residence abroad when applying for a student visa, the context is inherently different than that for B visitor and other short-term visa applicants. While students are required to have an intent to depart the United States at the end of their studies, they likely will not have evidence of ties to property,  employment, and continuity of life typical of B visa applicants. Accordingly, the residence abroad requirement for student applicants should be considered in the context of the usual limited ties that a student has and their immediate, present intent to depart the United States at the conclusion of their studies. An F-1 or M-1 visa should not be denied because there is some likelihood that their intent will change in the future.

On Aug. 28, 2019, U.S. Citizenship and Immigration Services (USCIS) issued new policy guidance “to address requirements for ‘residence’ in statutory provisions related to citizenship, and to rescind previous guidance regarding children of U.S. government employees and members of the U.S. armed forces employed or stationed outside the United States.” USCIS has updated its Policy Manual to clarify the distinction between residence and physical presence in the United States and to clarify that short visits to the United States do not establish residence as well as to state that children of U.S. government employees and U.S. armed forces members residing outside the United States are no longer considered to be “residing in the United States” for purposes of acquiring citizenship under INA 320. This policy will become effective Oct. 29, 2019. 

Continue Reading Friendly Fire: USCIS Deploys New Definition of ‘Residence’ in Statutory Provisions Related to Citizenship

USCIS’s Policy Memorandum on ‘Revised Interview Waiver Guidance for Form I-751, Petition to Remove Conditions on Residence” went into effect on Dec. 10, 2018. The memorandum fully replaces the June 24, 2005, “Revised Interview Waiver Criteria for Form I-751, Petition to Remove the Conditions on Residence.” These guidelines apply to I-751 cases filed as a joint petition or as a waiver of the joint filing requirement. Per the new memorandum, an officer may consider waiving an interview if they are satisfied that:

  • They can make a decision because the record contains sufficient evidence about the bona fides of the marriage (that the marriage was not entered into in order to evade U.S. immigration laws);
  • USCIS has previously interviewed the principal petitioner (for forms filed on or after Dec. 10, 2018);
  • There is no indication of fraud or misrepresentation in the Form I-751 or the supporting documentation; and
  • There are no complex facts or issues that require an interview to resolve.

For more on USCIS Policy Memorandums, click here.

The Department of Homeland Security announced on Aug. 28, 2017, that beginning on Oct. 1, USCIS will begin requiring in-person interviews at local District Offices for adjustment of status applications based on employment, as well as certain refugee/asylee relative petitions.

In the past, USCIS did not require an in-person interview adjustment of status applications based on employment, and only conducted these interviews on rare case-by-case bases.  The purpose of these interviews is to verify the information in the application and to determine the credibility of the individual seeking permanent residence. The current processing times for each service center processing Adjustment of Status applications based on employment are as follows:

The applications to adjust status will need to first be processed by USCIS, after which it will be sent to the local district office for an interview to be scheduled.  Due to the already backlogged timelines as indicated in the chart above, adding this extra step will further add to the processing times.  Please note that if the applicant and his or her dependents do file Adjustment of Status applications, they will receive work and travel authorization within 90-120 days of submission.

Greenberg Traurig is ready to assist with any queries related to this matter. Please subscribe to our blog for updates.

Applicants for certain Canadian immigration programs can look forward to a faster permanent residency process in the new year. Foreign nationals seeking permanent residence through the Federal Skilled Worker Program, the Federal Skilled Trades Program, the Canadian Experience Class, and parts of the Provincial Nominee Program should complete the Express Entry process in six months. The current process takes one to two years. Continue Reading Canada’s ‘Express Entry’ Permanent Residence Program Beginning in January 2015

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.

The EB-2 National Interest Waiver and EB-1A Extraordinary Ability categories remain two well-established paths to a green card. They allow professionals to bypass the labor certification process and, in the case of EB-1A, to self-petition without a job offer. That has not changed.

What has changed is the level of preparation these cases now require. USCIS Form I-140 adjudication data through the fourth quarter of FY2025 indicates that adjudicators are scrutinizing these petitions more closely than in prior years. For petitioners, the data is clarifying rather than discouraging: strong, well-documented cases continue to be approved at high rates. The data confirms that how a case is framed and documented has a meaningful effect on outcomes.

What the Numbers Show

Approval rates in the NIW category have declined from their pandemic-era peak. USCIS approved roughly 96% of NIW petitions in FY2022, a figure inflated in part by a much smaller pool of filings. As the category grew in popularity, the approval rate moved to approximately 80% in FY2023, roughly 71% in FY2024, and 55.2% for full FY2025, with a lower fourth quarter as the agency worked through a record backlog of filings. See USCIS Immigration and Citizenship Data.

EB-2 NIW Approval RateBy Fiscal Year
FY2022~96%
FY2023~80%
FY2024~71%
FY2025 (full year)55.2%
FY2025 Q435.7%

EB-1A approval rates have remained comparatively stable. After several years in a 70–75% range, the category finished FY2025 at 66.9%, meaning approximately two of every three petitions were approved. The O-1 nonimmigrant extraordinary ability classification remained above 90% throughout FY2025.

Category (FY2025)Approval RateQ4 FY2025
EB-2 NIW (immigrant)55.2%35.7%
EB-1A (immigrant)66.9%~53%
O-1 (nonimmigrant)>90%>90%

What Is Driving the Trend

In NIW cases, USCIS is applying the Matter of Dhanasar framework with greater rigor, placing weight on measurable, demonstrated U.S. impact rather than forward-looking potential or broad sector-wide claims. Healthcare, core STEM, and national-security-adjacent fields continue to fare well, and well-framed cases in other fields are approved regularly. Contributions that demonstrably extend beyond a single employer, supported by concrete evidence, are better positioned under current adjudication practice.

In EB-1A cases, adjudicators continue to apply the two-step “final merits” analysis, treating the three-criteria threshold as a starting point rather than a conclusion. That approach is now being tested in litigation. In Mukherji v. Miller (D. Neb. Jan. 28, 2026), a federal district court questioned whether USCIS properly adopted the two-step framework and ordered a petition approved after the agency conceded the petitioner met five of the 10 criteria. The decision is limited to that case and USCIS has not changed its guidance, but it represents a notable development and may provide an additional argument where a strong record has been denied on vague or conclusory reasoning.

The shift in approval rates does not reflect the exclusion of borderline filings. It signals that the quality and specificity of the petition (the framing of the endeavor, the independence of the evidence, the clarity of the U.S. benefit) are factors in adjudication outcomes.

What It Means for Petitioners

For an NIW, the proposed endeavor should be framed narrowly and tied concretely to a specific, demonstrated U.S. benefit rather than a broad field or job title and paired with evidence that the petitioner’s work has already produced impact beyond a single employer. That includes adoption or citation of the work by others, deployment at scale, measurable outcomes, government or industry uptake, and independent letters from qualified individuals that address specific contributions rather than offering general praise.

For an EB-1A, each claimed criterion should be corroborated with objective, third-party evidence. The record should articulate a consistent narrative of sustained national or international acclaim, rather than relying on meeting the three-criterion threshold alone. In both categories, independent corroboration, verifiable metrics, and a clearly articulated U.S. benefit are factors that distinguish approved petitions.

A few practical points for those weighing their options:

Individuals who may qualify for both EB-1A and NIW should consider filing both petitions concurrently. This approach creates multiple opportunities for approval and preserves flexibility as cases progress. If both are approved, the beneficiary can pursue permanent residence through whichever category offers more favorable visa availability and processing timelines. This can be particularly relevant for individuals born in countries subject to immigrant visa backlogs, where movement in the Visa Bulletin may differ between the EB-1 and EB-2 categories.

Filing both petitions also allows applicants to secure a priority date as early as possible while accounting for uncertainty in either adjudication. Where a candidate is employer-sponsored and the national interest or extraordinary ability case is substantial but not conclusive, a PERM-based EB-2 or EB-3 case may serve as a parallel or alternative path — typically slower, but a reliable route for the right candidate profile.

For self-petitioners whose work does not fit a standard job description, the NIW and EB-1A categories remain available but often the most appropriate fit. In those situations, the practical approach is to develop the strongest possible case and, where appropriate, pursue multiple pathways simultaneously.

Conclusion

The EB-2 NIW and EB-1A categories remain viable pathways to permanent residence for highly accomplished individuals. Well-documented cases continue to be approved, and these categories remain relevant for individuals whose work delivers significant value to the United States. Recent data does not foreclose NIW or EB-1A petitions; it reinforces the importance of selecting the appropriate category, presenting a clear and credible record of achievement, and documenting the U.S. benefit with specificity.

For lawful permanent residents, becoming a U.S. citizen is often the final step in a long immigration journey. However, recent adjudication trends in N-400 Applications for Naturalization indicate U.S. Citizenship and Immigration Services (USCIS) is applying increased scrutiny to applications involving extended travel abroad, tax compliance issues, and criminal history concerns. Applicants who may have expected a relatively straightforward process are now increasingly encountering Requests for Evidence (RFEs), prolonged adjudications, and second interviews before receiving a final decision. 

As a result, pre-filing analysis and strategic timing of the naturalization application have become increasingly important. 

Increased Scrutiny of Extended Absences 

One recent trend involves USCIS scrutiny of applicants who spent more than 180 days outside the United States during the statutory period for naturalization. Under the Immigration and Nationality Act, absences of more than six months but less than one year can create a rebuttable presumption that the applicant disrupted the “continuous residence” requirement for naturalization purposes. While some applicants overcome this presumption, USCIS is increasingly issuing RFEs requiring substantial documentary evidence to establish that the applicant did not abandon U.S. residence. 

Following the COVID-19 pandemic, some permanent residents experienced unanticipated travel disruptions due to flight cancellations, border closures, illness, caregiving obligations for overseas family members, or other pandemic-related circumstances. Applicants who exceeded 180 days abroad by only a few days are increasingly receiving RFEs. 

USCIS often requests detailed evidence demonstrating ongoing ties to the United States during the period abroad, including: 

  • Proof of home ownership or residential leases; 
  • Utility bills and other evidence of maintaining a U.S. residence; 
  • Bank account activity and financial records; 
  • Evidence of ongoing U.S. employment; 
  • Tax filings as a U.S. resident; 
  • Insurance policies; 
  • School enrollment records for children; and 
  • Other documentation demonstrating continued intent to maintain permanent residence in the United States. 

Applicants should consider evaluating their travel history before filing an N-400 application, particularly where any single absence exceeded 180 days.  

Some lawful permanent residents mistakenly believe that a reentry permit fully protects both their green card status and future eligibility for U.S. citizenship. While a valid reentry permit may allow a permanent resident to remain outside the United States for up to two years without being deemed to have abandoned lawful permanent resident status, it does not preserve continuous residence for naturalization purposes. Applicants who spent extended periods abroad — even with an approved reentry permit — may still face scrutiny and potential delays when applying for citizenship. 

Tax Compliance Issues and Findings of “Good Moral Character” 

USCIS officers are increasingly examining whether applicants have fully complied with their U.S. tax obligations as part of the “good moral character” analysis required for naturalization eligibility. 

Applicants with substantial unpaid taxes may face challenges even where they have entered into payment agreements with the Internal Revenue Service (IRS). While an approved IRS installment agreement can help address concerns, USCIS may still examine whether the applicant has complied with payment obligations and demonstrated overall financial responsibility. 

Failure to timely pay taxes may result in a finding that the applicant lacks good moral character, which might lead to denial of the N-400 application. 

Equally notable are situations where lawful permanent residents failed to file U.S. tax returns as residents because they relied on an applicable tax treaty or filed as nonresidents. Many permanent residents are unaware that claiming non-resident tax status may carry immigration consequences. 

USCIS may view such filings as evidence that the individual represented themselves as a non-resident, which can: 

  • Result in a finding of lack of good moral character; 
  • Lead to denial of the N-400 application; and 
  • Potentially raise questions regarding abandonment of lawful permanent resident status. 

Criminal History and Increased Interview Scrutiny 

Applicants with any criminal history — including arrests, dismissed charges, expungements, or older convictions — may experience heightened scrutiny from USCIS during the naturalization process. 

USCIS officers are increasingly conducting extensive questioning at N-400 interviews regarding prior criminal conduct, including in cases involving minor offenses or incidents that occurred many years ago. 

In some cases, applicants are being asked to provide: 

  • Certified court dispositions; 
  • Police reports; 
  • Evidence of completion of probation or rehabilitation programs; 
  • Additional testimony regarding underlying conduct; and 
  • Updated background documentation after the initial interview. 

Second interviews and prolonged background checks have become more common in cases involving criminal history or other discretionary concerns. 

Applicants should not assume that an expunged record or dismissed charge will be treated as irrelevant for immigration purposes. USCIS may still request disclosure and documentation regarding such incidents.  

Delays and Second Interviews Are Becoming More Common 

Across these categories, naturalization adjudications are becoming longer and more complex. 

Cases involving extended absences, tax concerns, or criminal history are frequently delayed beyond standard processing times. It is increasingly common for USCIS to: 

  • Issue multiple RFEs; 
  • Continue cases after the initial interview; 
  • Schedule second interviews; 
  • Request additional supervisory review; or 
  • Place cases into extended background or fraud review processes.  

For applicants facing these potential concerns, timing the filing of the N-400 application is important. 

Where applications are stalled following RFEs, continued interview review, or prolonged background checks, federal mandamus litigation may provide a remedy. In appropriate matters, mandamus actions have been filed in federal district court to compel USCIS to resume adjudication and issue decisions on delayed naturalization applications. Mandamus litigation is not appropriate in every case, but it may be a strategic option where applications remain unreasonably delayed without meaningful government action. 

The Importance of Strategic Pre-Filing Analysis 

Some applicants remain eligible for naturalization despite prior travel, tax, or criminal history complications. Filing prematurely or without sufficient preparation, however, may create unnecessary risk. 

In some situations, delaying filing may strengthen a case by allowing additional time to establish continuous residence, resolve tax liabilities, or address prior criminal issues. In others, assembling supporting documentation before filing may help minimize delays and reduce the likelihood of adverse findings. 

Given the level of scrutiny currently being applied by USCIS, applicants should consider asserting potential issues before submitting an N-400 applications and may wish to develop a strategy to address them. 

On May 21, 2026, USCIS issued Policy Memorandum PM-602-0199, outlining a change to the adjustment of status (AOS) process under Form I-485. The Policy Memorandum (PM) states that applicants for permanent residence should generally process for immigrant visas at U.S. embassies and consulates abroad following immigrant petition approval, except in limited circumstances. The PM reframes AOS as an “extraordinary discretionary benefit.”

AOS is the procedure for applying for permanent residence, commonly referred to as a “green card,” while physically in the United States. It is used by applicants who are in the U.S. and relies on a statutory framework outlining AOS eligibility criteria and the administrative process for adjudicating applications. For those outside the U.S., applicants for permanent residence go through a similar process at a U.S. embassy or consulate abroad, known as “consular processing.” The PM states that AOS is not an entitlement but a discretionary form of “administrative grace,” even where statutory eligibility is met. The PM characterizes AOS as an “extraordinary” remedy that allows applicants to “bypass” the immigrant visa process through consular processing, which the memo describes as the “normal” procedure that “the Congress generally expects aliens to follow.” The PM instructs officers to apply a case-by-case discretionary analysis, weighing positive and negative factors, including immigration violations, failure to maintain status, and failure to depart, as part of a totality of the circumstances assessment.

Who Does This Impact

The PM applies to all AOS applicants, including individuals with:

(1) pending or approved family-based immigrant petitions (Form I-130);
(2) pending or approved employment-based immigrant petitions (Form I-140); and
(3) pending or approved immigrant investor petitions (Form I-526/Form I-526E).

What Is New

The PM reframes AOS as secondary to consular processing. It characterizes AOS as an “extraordinary” form of relief, describes it as an exception that allows applicants to avoid consular processing and states that AOS should be granted sparingly.

What Is Important

The PM directs USCIS officers to evaluate whether an applicant should be granted AOS based on overall equities, including immigration compliance, moral character, family ties to the U.S., and conduct after admission as a nonimmigrant. Officers are instructed to conduct a totality of the circumstances analysis weighing positive against negative factors. The PM also confirms that discretionary denials must articulate why negative factors outweigh positive ones.

The PM elevates certain adverse factors, instructing officers to treat the following as “highly relevant”:

  • Failure to maintain nonimmigrant status;
  • Failure to depart after admission or parole;
  • Conduct inconsistent with the purpose of admission; or
  • Immigration violations or fraud.

The PM states that maintaining lawful nonimmigrant status in dual-intent categories (such as H-1B or L-1) does not automatically guarantee AOS approval; officers are still instructed to apply the totality of the circumstances test using the discretionary factors listed in the PM.

The current Administration has indefinitely suspended the issuance of immigrant visas via consular processing to nationals of 75 countries citing public charge concerns. Notably, the AOS process already includes public charge-related questions, while consular processing currently does not. A finding that an applicant does not warrant the “extraordinary measure” of AOS, combined with the immigrant visa suspension affecting nationals of those 75 countries, could leave a significant number of applicants unable to pursue permanent residence through either pathway. Such a broad suspension of immigrant visas raises questions regarding Congressional intent, given that Congress has statutorily authorized the issuance of 480,000 family-based green cards and 140,000 employment-based each year.

The U.S. embassies and consulates worldwide are also facing capacity constraints following staff reductions, and applicants pursuing consular processing may encounter lengthy wait times for immigrant visas. Applicants with unlawful presence or status violations may trigger a three- or 10-year bar to reentry if they travel abroad and may wish to carefully consider whether to depart and the potential impact on subsequent immigrant visa processing.

Impact on Pending AOS Applications

The PM does not address whether it applies to already pending or newly filed AOS applications. There is no stated effective date, and no specific changes have been made to the USCIS Policy Manual. Because USCIS may seek to apply the PM to pending applications, applicants may consider gathering evidence of positive discretionary factors, including U.S. employment, absence of immigration violations, family and community ties in the U.S., and U.S. investments (particularly for EB-5 investors). USCIS may issue Requests for Evidence (RFEs) seeking documentation to support the totality of the circumstances determination.

Impact on Travel and Work Authorization for AOS Applicants

The PM does not specifically address travel on an advance parole document (AP) or working pursuant to an employment authorization document (EAD) issued while an AOS applicant is pending with USCIS. However, applicants who use AP to travel internationally should be aware that if USCIS seeks to deny the AOS while they are abroad under this guidance, the applicant may face obstacles reentering the U.S. Travel on AP carries additional considerations considering the PM’s publication.

Travel on AP may also disrupt certain types of underlying nonimmigrant status, including B, E, F, J, H-1B1, and O status. Applicants may wish to remain in the U.S. and forego international travel on AP to preserve underlying nonimmigrant status where possible.

What’s Unclear

The PM is subject to a range of interpretations, and its practical application to specific nonimmigrant classifications, including long-term work-authorized categories (dual intent or otherwise), is presently unclear. The PM states that the current statutory framework and the validity of precedent appellate decisions remain unchanged; however, a number of the court decisions cited in the PM are dated or were decided in other contexts, such as removal proceedings and are not directly relevant to AOS applications.

Potential Court Challenges

The PM directs adjudicators to treat AOS as an extraordinary measure secondary to consular processing requiring a showing of “unusual or outstanding circumstances,” which represents a shift in agency practice. Both the statutory interpretation and the reading of case law cited in the PM may become subject to litigation, depending on how the agency’s adjudication practices change.

The AOS statute includes certain exceptions permitting individuals to apply for permanent residence even where they may have violated status, overstayed a visa, or worked without authorization. For example, an immediate relative (such as a spouse or parent of a U.S. citizen) may still apply for AOS without having maintained status or where unauthorized employment occurred. Similarly, the statute provides an exception for certain employment-based applicants who have had a period of unauthorized stay or unauthorized employment of fewer than 180 days. Some of the “negative” factors listed in the PM, including failure to maintain nonimmigrant status and failure to depart after admission or parole, appear to conflict with these statutory exceptions and could form the basis for legal challenge.

Congress has expressly passed the AOS statute permitting these applications. USCIS administers the AOS applications. U.S. federal courts interpret whether policies by USCIS, such as the PM, conflict with Congressional intent or the language of the statute passed by Congress. Litigation in the federal courts may focus on claims under the Administrative Procedure Act (APA), including that the PM constitutes a rulemaking disguised as policy guidance (which would require public notice and comment procedures) and/or that the PM is not in accordance with the law (e.g. the “negative factors” listed in the PM conflict with statutory exceptions that still permit AOS approval).

From a policy standpoint, family reunification has been a longstanding principal of U.S. immigration law. Litigation may also focus on the PM’s expressed limitation of AOS as inconsistent with the statutory framework allowing AOS applications for family reunification, including in cases where an applicant violated status or accrued unlawful presence. For EB-5 applicants, Congress passed the EB-5 Reform and Integrity Act of 2022 (RIA), which explicitly permits the concurrent filing of AOS applications. There may be potential litigation challenges asserting that the PM conflicts with the plain text and Congressional intent of the RIA.

Any forthcoming litigation will likely seek a temporary restraining order (TRO), which could pause the PM from taking effect and being applied to pending cases.

Practical Considerations

  1. Applicants may document positive discretionary factors in newly filed AOS applications, including family ties in the U.S., lawful employment, community involvement, and tax compliance.
  2. Applicants should maintain their underlying nonimmigrant status where possible and may wish to forego international travel on AP.
  3. Applicants with an approved immigrant petition (Form I-130, Form I-140 or Form I526/I-526E) may wish to file Form I-824 with USCIS to initiate an immigrant visa case with the National Visa Center, which may be used in the event of a subsequent AOS denial.
  4. USCIS may issue additional guidance or clarification on the PM. The PM states that USCIS may issue further guidance on certain AOS categories or discrete populations to aid officers in identifying which applications may or may not be affected. USCIS may also clarify its policy positions following further review of the impact on applicants.

The PM may result in increased difficulty in obtaining a green card through the AOS process, particularly for applicants with prior immigration violations or those holding purely nonimmigrant intent visa categories (B-1/B-2, E-1/E-2/E-3, F-1, J-1, TN, H-1B1, and O-1). While the PM signals potential changes to the AOS process, the underlying statute remains unchanged and the PM may be subject to court challenge.