Adjustment Of Status vs. Consular Processing?

In May 2026, USCIS issued a policy memo on adjustment of status (AOS) that has reshaped how the agency evaluates green card applications filed from within the United States. On the latest episode of Statutes of Liberty, host and Senior Associate Natalia Gouz sits down with Partner Jessica DeNisi, who brings additional insight from her background with the U.S. Department of State, to unpack what the memo says, how it has played out in practice, and what it means for green card applicants and the employers who sponsor them. Their conversation covers everything from immediate response strategies to a detailed comparison of adjustment of status and consular processing.

What the New Policy Memo Says

USCIS has taken the position that its policy memo does not represent a new standard, but rather clarifies how discretion has always applied to adjustment of status adjudications. In practice, however, the memo appears to apply broadly, including prospective clients still deciding how to proceed, those with applications already pending, and individuals who may need to reconsider their filing strategy altogether.

The memo has prompted employers, foreign national employees, and immigration counsel alike to take a closer look at who may be affected and what proactive steps can reduce risk.

Responding to Pending Applications

For individuals with adjustment of status applications already filed, one of the most immediate strategies has been interfiling, which is submitting supplemental documentation into a pending case to strengthen the record. This can include evidence of positive equities, such as ties to the United States, length of residence, employment history, and family connections, as well as documentation supporting any economic benefit an applicant provides. Additional guidance from USCIS suggested that this kind of contribution may be viewed favorably under the new discretionary framework, giving applicants and counsel a concrete way to respond even while broader questions about the memo’s scope remain unsettled.

What This Means for EB-5 Investors

The policy shift carries particular significance for EB-5 investors adjusting status in the United States. Many EB-5 investors previously pursued employment-based categories like EB-2 or EB-3 before shifting strategies due to lengthy backlogs, and the ability to adjust status domestically, rather than depart for consular processing, has been especially important given the disruption that travel abroad could cause to their established lives, families, and careers.

Further complicating the situation is a grandfathering deadline of September 30, 2026, tied to the EB-5 Reform and Integrity Act. Regional Center investors who file before this deadline are protected from denials due to the expiration of the program, currently set to occur in 2027. Combined with a period of volatility in initial EB-5 petition adjudications, this has left many investors navigating uncertainty at both the petition and adjustment of status stages simultaneously, while faced with an upcoming deadline.

What’s Happening at Adjustment of Status Interviews

Since the memo took effect, reports from the field have shown a mixed and inconsistent picture. Some applicants have been asked directly why they chose to pursue adjustment of status in the United States rather than complete their green card process through a consulate abroad, which is a question that had not historically been part of the standard interview process and does not appear on Form I-485 itself.

Other developments have included interviews being canceled and rescheduled, requests for evidence issued on the spot, and some approved cases without any additional questioning at all. This variation appears to depend significantly on the field office handling the case, suggesting that implementation guidance is still being developed and applied unevenly across the country. Employers and individuals preparing for upcoming interviews should be ready to address these kinds of questions, particularly if an applicant’s immigration history involves a shift from a nonimmigrant intent to a dual-intent nonimmigrant visa category.

Adjustment of Status vs. Consular Processing: Key Differences

For applicants weighing their options, understanding the practical differences between adjustment of status and consular processing has become more important than ever. Adjustment of status allows an applicant to remain in the United States throughout the process, continuing to work and stay with family while their case is pending. Consular processing, by contrast, requires the applicant to complete the final step of their green card process at a U.S. consulate abroad.

Consular processing carries its own set of considerations. Once an applicant departs the United States, they lose certain protections available domestically and may become subject to unlawful presence bars or travel restrictions depending on their circumstances. The process also runs through the National Visa Center, which can take significant time to reach documentary completeness, followed by a wait for an interview slot that can vary dramatically by consular post. Consular interviews can also involve significant scrutiny depending on the applicant’s country of origin, including additional questions related to national security or a fresh review of source and path of funds for EB-5 investors.

Importantly, the choice between these two paths is often made years earlier, at the immigrant petition stage. Switching from consular processing to adjustment of status later is relatively straightforward, but the reverse — moving from adjustment of status to consular processing — requires initiating a new process with the National Visa Center that can take a year or longer.

Key Steps for Employers and Individuals to Take Now

Given the evolving landscape, employers and individuals should consider the following:

• Review pending AOS applications to determine whether interfiling supplemental evidence would strengthen the case
• Prepare applicants for potential interview questions about their choice of AOS over consular processing
• Reassess the adjustment of status vs. consular processing decision at the immigrant petition stage, particularly for cases not yet filed
• For EB-5 investors, prioritize filing before the September 30, 2026, grandfathering deadline where possible
• Stay in close contact with counsel as field office practices continue to vary and evolve

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.