A policy change targets temporary visa holders seeking permanent residency and could result in a gap in work.
By Allison Ahern Fillo
Navigating the increasing changes to U.S. immigration policy and practices has become an exercise in agility for U.S. employers, particularly HR leaders responsible for overseeing U.S. work authorization for foreign talent and coordinating global mobility.
When U.S. Citizenship and Immigration Services (USCIS) releases a major change in policy, U.S. employers should ask experienced immigration counsel the following three questions.
- Who does this impact?
- How and when will the change be implemented?
- How do organizations prepare for and mitigate potential gaps in U.S.-based work?
The Policy Memorandum USCIS released on May 21, 2026, is an example of a major change in immigration policy prompting these questions.
The Policy Memorandum directs USCIS Officers to limit issuance of green cards within the U.S. Emphasizing USCIS’ discretionary authority, the Policy Memorandum explains that USCIS Officers should “weigh all positive and negative factors, including family ties, immigration status and history, the applicant’s moral character, and any other relevant factor that bears on determining whether the alien warrants a favorable exercise of discretion.” The vaguely defined “positive and negative factors” support broad USCIS discretion in deciding to issue an applicant a green card within the U.S.
Obtaining a green card and becoming a U.S. permanent resident within the U.S. (referred to as “Adjustment of Status”) bypasses the need to travel to the home country and go for processing at the U.S. Consular Post in that home country. “Adjustment of Status” is a long-standing advantageous approach to obtaining a green card, especially for employees who are already in the U.S. and who have resided and worked in the U.S. for years.
With the above-noted questions in mind, the Policy Memorandum impacts foreign-born employees working for a U.S. employer inside the U.S and using temporary U.S. work authorization, such as an H-1, L-1, O-1, TN, J-1, or F-1 visa, or temporary employment authorization document (“EAD”) card. These types of U.S. work authorization are temporary, as U.S. employers would see during the onboarding of the employee and completing that employee’s I-9. These specific foreign-born employees may not be able to obtain a green card and become a U.S. permanent resident within the U.S. in USCIS’ discretion under the Policy Memorandum. Instead, they may be required to travel to their home country and go for consular processing in order to become a U.S. permanent resident.
Why does this matter to U.S. employers? The need for the foreign-born employee to travel to their home country for consular processing to become a U.S. permanent resident, following a denial of the “Adjustment of Status,” could result in a gap in their work. Consular processing typically takes at least several weeks, possibly months. For work that requires the foreign-born employee’s physical presence in the U.S., such a gap can impact project timelines, productivity, and deliverables. Additionally, consular posts across the world are extremely backlogged. Waiting for the immigrant visa interview at the U.S. Consular Post in the foreign-born employee’s home country could take years, requiring the U.S. employer to keep trying to extend the foreign-born employee’s temporary U.S. work authorization. Such extensions are costly and are only possible with certain types of temporary U.S. work authorization.
This change is immediately effective, with no exceptions. The Policy Memorandum does not distinguish among nationalities or the basis for the green card eligibility. Moreover, it appears to apply to currently pending “Adjustment of Status” applications, as seen in some recent denials on applications that have been pending for months.
To prepare for and mitigate potential gaps in work, U.S. employers should flag foreign-born employees using temporary U.S. work authorization who are currently applying for “Adjustment of Status” or will apply for “Adjustment of Status” in the future. Identifying the specific employees who may be impacted is an important first step. Once identified, U.S. employers should work with experienced immigration counsel to document the employees’ “positive and negative factors” that USCIS is now expected to analyze in processing and adjudicating “Adjustment of Status” applications. Such internal evaluations by the U.S. employer and experienced immigration counsel will help assess the likelihood that the employee will be granted “Adjustment of Status” or will have a gap in work due to a denial of the “Adjustment of Status” and need to go for consular processing in the home country. Documenting the employees’ “positive factors” will also support their “Adjustment of Status” applications. Preparing evidence of “positive factors” in advance will make the “Adjustment of Status” application process go smoother and mitigate delays and a possible denial.
If it’s likely that an employee’s “Adjustment of Status” application will be denied, U.S. employers can prepare in advance for a potential gap in that employee’s work and understand from experienced immigration counsel the timing and duration of that potential gap.
Looking ahead, U.S. immigration practitioners expect to better understand the scale of USCIS’ implementation of this policy change over the coming weeks. USCIS has approved “Adjustment of Status” applications since May 21, 2026, so it is clear that this policy change is not the end of “Adjustment of Status.” U.S. employers with foreign-born employees using temporary U.S. work authorization should monitor this change, and other impactful changes to U.S. immigration policy and practices. Awareness, understanding, and preparation continue to be paramount in this shifting U.S. immigration landscape.
Allison Ahern Fillo is shareholder at Davis Malm.
