Is Your H-1B, L-1, or Employment-Based Green Card Still Safe? Breaking Down the New USCIS Policy Memo

If you’re on an H-1B, L-1, or employment-based green card track, the immigration landscape shifted under your feet on May 21, 2026. A new USCIS policy memo — PM-602-0199 — has reframed how officers evaluate green card applications filed inside the United States. The process millions of skilled professionals have relied on is no longer the predictable path it once was. 

Here’s what changed, who’s most affected, and what you need to do before your next filing.

What Is the New USCIS Policy Memo, PM-602-0199?

The memo’s full title tells you everything about its intent: “Adjustment of Status is a Matter of Discretion and Administrative Grace, and an Extraordinary Relief that Permits Applicants to Dispense with the Ordinary Consular Visa Process.”

Stripped of the legalese, here’s what it means: applying for a green card from inside the U.S.,  known as Adjustment of Status (AOS), is no longer treated as something you earn by meeting a checklist. USCIS officers are now formally directed to treat it as a discretionary act, one they can deny even when an applicant is technically eligible.

Adjustment of Status vs. Consular Processing — the key difference:

Factor	Adjustment of Status (I-485)	Consular Processing
Location	Inside the U.S.	U.S. Embassy/Consulate abroad
Travel during the process	Requires Advance Parole	Must remain abroad until a visa is issued
Who does it now favor	Applicants with clean, consistent records	Encouraged default for non–dual–intent non–immigrants; not legally required for any category

USCIS Spokesman Zach Kahler stated plainly that foreign nationals temporarily in the U.S. will now generally be expected to return home to apply. However, Kahler’s public statement went further than the memo itself. The memo does not eliminate AOS as a legal pathway or require any category of applicant to leave the U.S. What it does is direct officers to apply heightened discretionary scrutiny to AOS applications. AOS remains available; approval simply requires a stronger showing of merit.

How the USCIS New Policy Memo Affects H-1B Visa Holders

H-1B professionals are affected by PM-602-0199, but due to dual-intent status they are relatively better positioned than non–dual-intent categories such as F-1, OPT holders, tourists, or ESTA entrants. Dual intent means pursuing a green card is not, by itself, a negative factor at the AOS stage. That said, H-1B holders are not immune from heightened scrutiny.

• Heightened I-485 scrutiny: Officers will now examine immigration history, prior status gaps, and intent at original entry more aggressively than before.
• Pressure toward consular processing: Applicants with any record inconsistencies may be directed to leave the U.S. and apply through their home country consulate instead.
• Travel risk clarified: The rule that travelling without Advance Parole abandons an I-485 application is not new — it predates PM-602-0199. What the memo changes is the discretionary scrutiny applied upon return and during adjudication, not the Advance Parole mechanics themselves. Applicants should still avoid international travel without AP, as they always should.
• Pending applications: Those mid-process are not protected. Officers may apply the new standard to cases already in the queue.

H-1B status does not confer immunity. Applicants should audit their immigration record now, before an RFE or denial does it for them.

Impact on L-1 Visa Holders

L-1 visas carry dual-intent protection by design, meaning holders can pursue a green card without abandoning nonimmigrant status. But that protection covers the visa, not the Adjustment of Status application itself.

PM-602-0199 targets AOS directly. For multinational executives and managers on L-1A visas, this means:

• Officers may scrutinize organizational structure, the applicant’s actual role versus their title, and the consistency of their career narrative across filings.
• Long-term green card planning is disrupted if consular processing becomes the required route, pulling key leadership out of the U.S. at critical moments.
• The dual-intent shield that made the L-1 path feel predictable no longer extends to the final, most consequential stage of the process.

Are Employment-Based Green Cards Still Safe? What H1B Green Card Policy Changes Mean by Category

The risk level under PM-602-0199 varies significantly by category, and understanding where you stand matters.

EB-1A: Lower Risk, Higher Preparation Standard

EB-1A Extraordinary Ability petitioners are comparatively better positioned. The evidentiary bar for EB-1A is already high, which means applicants who have invested in a rigorous evidence strategy and precise narrative development are better equipped to demonstrate merit under discretionary review.

But “lower risk” is not “no risk.” U.S. Citizenship and Immigration Services (USCIS) data shows EB-1A approval rates already fell from approximately 70.5% in FY2023 to 60.6% in FY2024,  before PM-602-0199 was issued, driven by stricter final merits determination. According to data from USCIS, the EB-1 approval rate for the full fiscal year 2025 is 81.2%. Under the new memo’s heightened discretionary framework, documentation must be complete, consistent, and defensible at every stage. The preparation bar has risen, and the data confirms it.

EB-2 and EB-3: Elevated Exposure

USCIS policy changes for EB-2 and EB-3 applicants are the most consequential under this memo:

• Priority date backlogs mean these applicants sit in limbo for years, during which their immigration record can accumulate new risk factors.
• An approved I-140 is no longer a near-guarantee of eventual AOS approval. Officers may now scrutinize employer compliance, job description accuracy, and conduct throughout the applicant’s entire U.S. stay.
• PM-602-0199 reaffirms and emphasises the longstanding “totality of circumstances” standard for AOS discretion — this is not a new legal test, but the memo directs officers to apply it more actively and with fewer default assumptions of approval. Eligibility is the floor. Officers must now be convinced you merit approval. Those are two different things.

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What USCIS Officers May Now Review More Closely

Under the I-485 discretionary review framework introduced by PM-602-0199, every application is now subject to evaluation of:

• Prior immigration status violations or overstays at any point in the applicant’s history
• Unauthorized employment, even for a brief or ambiguous period
• Gaps in valid non-immigrant status between employer sponsorships
• International travel history and the basis for each re-entry
• Whether the stated intent at the original entry is consistent with the green card pursuit
• Public record inconsistencies, social media, tax filings, employer records, government databases

The absence of negative factors is no longer enough. Applicants must affirmatively demonstrate they deserve a favorable exercise of discretion.

Does This Mean Everyone Must Leave the U.S.?

No, and the distinction matters. PM-602-0199 does not eliminate AOS as a legal pathway or require any category of applicant to leave the United States. AOS filings remain open for all eligible applicants.

What the memo does is change how officers are instructed to exercise their existing discretionary authority under INA § 245(a). It creates stronger institutional pressure toward consular processing for applicants whose records show any inconsistencies — but that pressure is not a legal mandate.

Immigration attorneys across the country have flagged the memo as legally vulnerable. Litigation is expected imminently. Courts may enjoin or narrow its reach. But until that happens, adjudicating officers are operating under the new standard — today, on pending applications.

The prudent assumption: treat the new standard as operative and prepare accordingly.

Build Your Petition Plan

What Applicants Should Do Right Now

This is not a “wait and see” situation. Here’s where to start:

1. Audit your immigration record: Identify any status gaps, employment irregularities, or travel inconsistencies before an officer does. Every vulnerability is addressable proactively; few are addressable after a denial.
2. Do not travel internationally without legal clearance: Advance Parole is not a guaranteed re-entry pass under the current enforcement posture.
3. Strengthen documentation before filing: Employment records, tax filings, employer-employee relationship documentation, and evidence of your contributions need to be airtight.
4. Prepare for RFEs: Requests for Evidence are more likely under PM-602-0199, not less. Build a record that anticipates scrutiny.
5. Consult immigration counsel now: The window between a risk becoming visible and becoming a problem is narrower than it has ever been.

Employer Impact and Workforce Planning

For companies sponsoring foreign national employees, PM-602-0199 introduces compounding operational risk:

• Hiring timelines are harder to project when AOS outcomes are no longer predictable.
• Green card sponsorship may require rerouting through consular processing, pulling employees out of the country during critical business cycles.
• Compliance exposure increases as officer scrutiny extends to employer records, wage documentation, and job description accuracy.
• Retention risk grows for sponsored employees facing prolonged uncertainty about their status and future in the U.S.

Immigration planning is now a workforce risk, not a back-office function.

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Conclusion

PM-602-0199 is the most consequential shift in green card adjudication in years — not because it changed the law, but because it changed how the law is applied to you.

For H-1B, L-1, EB-2, and EB-3 applicants, the message is clear: eligibility is necessary but no longer sufficient. A favourable outcome now requires a record and a narrative that can withstand active discretionary scrutiny.

For EB-1A Extraordinary Ability petitioners, the path runs through what it always has — rigorous evidence strategy, precise narrative development, and documentation built to hold up under review. USCIS data already shows EB-1A approval rates fell from 70.5% in FY2023 to 60.6% in FY2024, before this memo was issued. In the current environment, that preparation is not optional. It is the foundation everything else rests on.

FAQs

1. Can H-1B holders still file an I-485 inside the United States? 

Yes. H-1B holders can still file I-485 inside the U.S. What changed is the standard officers apply when reviewing it, not eligibility to file.

PM-602-0199 does not prohibit domestic Adjustment of Status filings for any visa category. Officers now conduct a full totality-of-circumstances assessment on every application. H-1B is a dual-intent visa, so pursuing a green card is not itself a negative factor, but dual intent does not shield the I-485 from heightened discretionary review. A clean status history and strong documentation are now baseline requirements, not differentiators.

2. Is consular processing now mandatory under PM-602-0199? 

No. Consular processing is not legally mandatory for any category. The memo expresses a policy preference, not a statutory requirement.

PM-602-0199 does not amend INA § 245(a). It directs officers to treat AOS as extraordinary relief requiring active justification. For H-1B, L-1, and other dual-intent holders with clean records, Adjustment of Status inside the U.S. remains a legally sound path. Applicants with status vulnerabilities face stronger institutional pressure toward consular processing, but no legal bar on filing.

3. Are dual-intent visas like H-1B and L-1 safer under this memo? 

Yes, relatively safer than non-dual-intent categories like F-1 or B-2, but not fully protected at the AOS stage.

Dual intent prevents USCIS from denying an H-1B or L-1 renewal based on immigrant intent. It does not protect the I-485 application from discretionary denial. Applicants with continuous lawful status and consistent employment history are comparatively lower risk, but must still affirmatively demonstrate positive equities.

4. Will this affect pending EB-2 and EB-3 cases? 

Yes. There is no grandfather protection. Officers can apply the new discretionary standard to cases already in process.

EB-2 and EB-3 applicants with long-pending cases should audit their full immigration record with counsel now. Priority date backlogs mean longer exposure windows for record vulnerabilities to accumulate. An approved I-140 no longer near-guarantees eventual AOS approval.

5. What does “totality of circumstances” mean in practice? 

It is a longstanding legal standard, not new, that PM-602-0199 directs officers to apply more actively to AOS adjudications.

Officers weigh positive factors (clean status, employment history, community ties, extraordinary contributions) against negative ones (overstays, status gaps, unauthorised employment, inconsistent entry intent) across the entire immigration record. No single factor is automatically disqualifying or automatically protective. There is no published rubric. Proactive documentation of positive equities, before filing and not in response to an RFE, is the most important step an applicant can take now.