Recent guidance issued by U.S. Citizenship and Immigration Services (USCIS) has generated significant discussion among employers, foreign national professionals, and immigration practitioners. The memorandum reiterates that Adjustment of Status (AOS) under Section 245 of the Immigration and Nationality Act (INA) is a discretionary benefit rather than an automatic entitlement, even when an applicant otherwise meets the statutory eligibility requirements.
For H-1B and L-1 visa holders pursuing employment-based permanent residence, the announcement has prompted questions about how adjustment applications may be reviewed going forward and whether the new guidance changes existing pathways to a green card.
While the memorandum emphasizes discretionary review, it does not eliminate Adjustment of Status as an option, nor does it change the underlying eligibility requirements for employment-based immigrant petitions. Instead, it serves as a reminder that USCIS officers may consider the totality of the circumstances when adjudicating adjustment applications.
What Is Adjustment of Status?
Adjustment of Status allows certain eligible individuals who are already present in the United States to apply for lawful permanent residence without departing the country for immigrant visa processing at a U.S. consulate abroad.
For many employment-based applicants, Adjustment of Status offers several advantages, including:
- Remaining in the United States during processing;
- Obtaining employment authorization and travel authorization while the application is pending;
- Avoiding international travel disruptions associated with consular processing;
- Maintaining continuity for family members residing in the United States.
Although Adjustment of Status remains available, USCIS has emphasized that approval is not automatic simply because an applicant qualifies under an immigrant visa category.
Why H-1B and L-1 Visa Holders Are Different
One important factor for many employment-based applicants is the concept of dual intent.
Unlike certain nonimmigrant classifications, H-1B and L-1 visas generally permit an individual to maintain temporary nonimmigrant status while simultaneously pursuing permanent residence.
As a result, filing an immigrant petition or Adjustment of Status application is generally not considered inconsistent with maintaining H-1B or L-1 status.
This distinction remains important because many other visa classifications do not offer the same flexibility.
What USCIS May Consider During Discretionary Review
The memorandum reinforces USCIS’s authority to evaluate Adjustment of Status applications based on the overall circumstances of each case.
Factors that may receive scrutiny include:
Compliance with Immigration Status
Applicants should carefully maintain lawful status whenever possible.
USCIS may review:
- Timely extensions of status;
- Maintenance of employment authorization;
- Compliance with visa conditions;
- Prior immigration violations.
Maintaining a strong record of compliance can help avoid unnecessary complications during the adjustment process.
Employment History
Employment-based applicants should ensure that their immigration records accurately reflect their work history.
Issues that may require additional explanation include:
- Unauthorized employment;
- Significant gaps in employment;
- Inconsistencies between immigration filings and tax records;
- Work performed outside the scope of authorized status.
Prior Immigration History
USCIS may also review:
- Previous visa applications;
- Prior denials;
- Periods of unlawful presence;
- Prior status violations;
- Travel history and admissions records.
Each case should be evaluated individually to determine whether any prior issues require legal analysis or supporting documentation.
Adjustment of Status Versus Consular Processing
Many employment-based immigrants have two potential paths to permanent residence:
Adjustment of Status
Applicants remain in the United States while USCIS processes the green card application.
Potential advantages include:
- No international travel requirement for visa issuance;
- Ability to obtain Employment Authorization Documents (EADs);
- Advance Parole travel authorization;
- Greater continuity for families residing in the United States.
Consular Processing
Applicants complete immigrant visa processing at a U.S. embassy or consulate abroad.
Depending on the facts of the case, consular processing may remain an appropriate option for certain applicants. However, careful legal analysis is often necessary before deciding which path is best.
Practical Considerations for Employers
Employers sponsoring foreign national workers should continue to prioritize immigration compliance.
Best practices may include:
- Maintaining accurate public access files;
- Monitoring visa expiration dates;
- Updating worksite information when required;
- Preserving payroll records and immigration documentation;
- Coordinating green card sponsorship strategies early in the employment relationship.
Proactive planning can often reduce delays and minimize requests for additional evidence.
Practical Considerations for H-1B and L-1 Employees
Employees pursuing permanent residence should consider:
Maintaining Valid Nonimmigrant Status
Even after filing an Adjustment of Status application, maintaining underlying H-1B or L-1 status may provide important protections if unexpected issues arise during processing.
Preserving Documentation
Applicants should retain:
- Approval notices;
- Pay records;
- Tax returns;
- Employment verification letters;
- Travel records;
- Copies of immigration filings.
Well-organized documentation can help address future USCIS inquiries efficiently.
Preparing for Additional Scrutiny
The memorandum may lead to more detailed review of certain applications. As a result, applicants should be prepared to provide clear documentation supporting eligibility and compliance with immigration requirements.
What This Means for Employment-Based Green Card Applicants
The recent USCIS guidance does not eliminate Adjustment of Status, nor does it prevent qualified H-1B and L-1 workers from pursuing permanent residence in the United States.
However, the memorandum highlights the importance of:
- Maintaining lawful status;
- Preserving accurate employment records;
- Addressing immigration issues proactively;
- Preparing comprehensive filings supported by strong documentation.
For many applicants, early planning and careful legal review can help reduce risks and improve the overall immigration strategy.
How NPZ Law Group Can Assist
NPZ Law Group assists employers, executives, managers, professionals, researchers, and skilled workers with a wide range of employment-based immigration matters, including:
- H-1B petitions;
- L-1 intracompany transferee petitions;
- PERM labor certifications;
- EB-1 multinational manager and extraordinary ability petitions;
- EB-2 National Interest Waiver petitions;
- Adjustment of Status applications;
- Consular processing matters;
- Corporate immigration compliance.
As immigration policies continue to evolve, employers and foreign national employees should review their immigration strategies carefully to ensure they remain aligned with current USCIS guidance.
Frequently Asked Questions
Did USCIS eliminate Adjustment of Status?
No. Adjustment of Status remains available for eligible applicants. The memorandum simply reiterates that Adjustment of Status is a discretionary benefit and that officers may consider the totality of the circumstances when reviewing applications.
Are H-1B visa holders still eligible to apply for a green card?
Yes. H-1B holders remain eligible to pursue employment-based permanent residence if they satisfy the applicable requirements.
Are L-1 visa holders affected by the new guidance?
L-1 visa holders remain eligible to pursue Adjustment of Status and employment-based immigrant petitions. However, USCIS may continue to review each case individually.
What is dual intent?
Dual intent allows certain nonimmigrant visa holders, including H-1B and L-1 workers, to maintain temporary status while simultaneously pursuing permanent residence.
Should applicants maintain H-1B or L-1 status after filing Adjustment of Status?
In many cases, maintaining underlying nonimmigrant status may provide additional protection and flexibility while the Adjustment of Status application remains pending.
Could Adjustment of Status applications face increased scrutiny?
The memorandum suggests that USCIS officers may place additional emphasis on discretionary review factors. Strong documentation and careful preparation remain important components of any filing.
Contact Information
If you or your family members have any questions about how immigration and nationality laws in the United States may affect you, or if you want to access additional information about immigration and nationality laws in the United States or Canada, please do not hesitate to contact the immigration and nationality lawyers at NPZ Law Group. You can reach us by emailing info@visaserve.com or by calling us at 201-670-0006 extension 104. We also invite you to visit our website at www.visaserve.com for more information. Nachman, Phulwani, Zimovcak (NPZ) Law Group, P.C. – VISASERVE.