USCIS policy memorandum dated May 22, 2026. What it actually says, how different lawyers read it, and why for talent visas it’s less terrifying than the headlines scream. Update May 23, 2026.
Information
This is an independent analysis of the USCIS Policy Memo PM-602-0199 and of public commentary on the topic; it is not legal advice. Full disclaimer below.
Short glossary so you don’t trip over terms later
- USCIS - the agency that accepts and adjudicates immigration forms
- AOS (Adjustment of Status) - filing Form I-485 to get a green card from inside the U.S., without leaving
- CP (Consular Processing) - obtaining an immigrant visa through a U.S. consulate abroad, the alternative to AOS
- INA §245 - the section of the Immigration and Nationality Act that governs AOS
- EB-1A, EB-2 NIW, O-1 - talent categories: extraordinary ability, national interest waiver, and a temporary work visa for individuals with extraordinary ability
- Dual intent - the legal doctrine applying to H-1B and L-1 that permits simultaneous temporary and permanent intent
- RFE - Request for Evidence, USCIS asking the applicant to submit additional proof
- NOID - Notice of Intent to Deny, a more serious stage than an RFE
- APA - Administrative Procedure Act, the main federal statute under which agency decisions are challenged in court
- BIA - Board of Immigration Appeals, the immigration appellate board whose decisions bind USCIS
Contents
- Top takeaways in 30 seconds
- Cheat sheet for those just starting out
- What the memo actually says. Direct quotes
- The most protective phrase for talent visas. Kahler’s quote
If you don’t have time to read the whole article — here’s the gist in seven points
- What happened. On May 21, 2026 USCIS, under Director Joseph Edlow, issued policy memo PM-602-0199. A policy memo is an internal USCIS instruction for officers: not a law, not a regulation, but guidance on how to read existing rules. AOS has not been abolished and cannot be abolished by a memo. But the memo shifts the burden: a clean record alone is no longer enough; applicants must show outstanding balancing equities.
- The main protective quote for talent visas. USCIS spokesperson Zach Kahler told CBS News, WaPo and BBC that applicants who provide an "economic benefit" or are in the "national interest" will likely be able to continue AOS from inside the U.S. EB-1A and EB-2 NIW by definition fall into these categories. Remember this quote and use it in discussions with your attorney.
- Where lawyers disagree. The memo relies on the stricter BIA decision Matter of Blas (1974) and ignores the more applicant-friendly Matter of Arai (1970). On that substitution, lawyers (Harris, Mehta, Paparelli, Carpenter) promise APA challenges in federal court. Loper Bright (2024) strengthens plaintiffs’ position because courts are no longer required to defer to agency interpretations.
- Camps. Critics (Harris, Mehta, Paparelli, Carpenter): the memo is legally vulnerable and there will be litigation. Moderates (Murthy, Boundless, Wolfsdorf, Harris Beach Murtha): the law hasn’t changed, but the standard has tightened. Alarmists (Reddy, Bier, Rand, Valverde, Taub, Goss): catastrophe, prepare for the worst. All agree: file I-485 as a full package with active justification of positive factors, not as a mere attachment to an approved I-140.
- O-1, EB-1A, EB-2 NIW. O-1 sits in a quasi-dual intent zone: less protected than H-1B/L-1, but more than TN, E-3, F-1 and B visas. There are no fully reassuring public positions on O-1, nor fully alarmist ones. For EB-1A and EB-2 NIW LexElite’s core defensive strategy: reuse the same extraordinary ability and national importance evidence that supported the I-140, repackaged to show outstanding equities.
- Diagnostic silence. Former top DOJ attorneys (Vuong, Dawgert) have not publicly commented yet. Of 15 major think tanks only Cato Institute (David Bier) published an analysis. Anti-immigration think tanks (Heritage, FAIR, CIS) are also silent. This is a strong signal that the memo may be legally problematic.
- Next checkpoint. I’m waiting for USCIS to issue separate memos for specific populations and for the first federal lawsuits. Realistically by the end of June.
Important right away. This is not legal advice.
I am not a U.S. licensed attorney. This is an analysis of publicly available materials: USCIS press release, the memo text itself, publications from large immigration firms, media articles, think tank commentary. For your specific case consult a licensed U.S. immigration attorney with an active license.
Main news right away
On May 21, 2026 USCIS under Director Joseph Edlow released policy memo PM-602-0199. (A policy memo is an internal USCIS memorandum for officers: not legislation or regulation but instruction on how to interpret existing rules.) On May 22 the agency accompanied it with a press release in which USCIS spokesperson Zach Kahler stated: foreign nationals temporarily in the U.S. who want a green card “are required to return home and apply via consular processing, except in exceptional circumstances.”
Full text of the memo on the USCIS website, a local PDF copy is attached to the post.
The Department of Homeland Security (DHS, USCIS’s parent) reinforced this via an X post on May 22: “The era of abusing our nation’s immigration system is over.” The tone is deliberately aggressive.
Screenshot of that tweet. 3.2K replies, 13K retweets, 62K likes, 35M views. DHS reposted not its own source but an exclusive piece by the right-leaning outlet Daily Caller, which first received the document from the administration.
The thread under that tweet is telling in itself. Polarization is instant and sharp. Support mainly from the MAGA base (“Outstanding”, “I voted for this!”, “Awesome”, “GET THEM THE FUCKOUTOFMY COUNTRY”, “Mass deportations and a complete repeal of Hart Celler 1965. Make it happen”). Criticism comes quickly from both sides.
On the left critics call it a blow to legal immigration, family separation, and years of backlog. Unexpected criticism from the right came from Laura Ingraham (Fox News host who usually favors immigration restrictions). She replied with the word “Terrible” (see her X account). That’s an interesting signal—Ingraham historically opposes H-1B and corporate immigration. Her “Terrible” likely criticizes not the tightening of AOS per se but the memo’s carve-out protecting H-1B and L-1 (dual intent). In other words, she’s attacking the memo from the right for not being harsh enough on corporate workers.
Among named critics in the lawyer-expert community the same names repeat as in major media. Cyrus Mehta in his blog on May 23 calls the memo “an abrupt upheaval of established USCIS policy” and predicts imminent litigation along the Loper Bright line. David Bier (Cato) in an interview with The Hill calls the current administration “the most anti-legal immigration admin in US history.”
From the tech community a direct reaction on X came from venture capitalist Nick Davidov; his tweet on May 22: “The biggest bullshit move by DHS in its history. So everyone on a O1 or H1B visa would have to stop working legally in the US, go back to their country and wait for years of backlog?”
Notable institutional silence: AILA did not officially respond to that tweet (though they wrote USCIS a separate letter the same day on a different topic about reserved visa numbers). ACLU declined to give immediate comment to Fox News Digital on request. Republicans in Congress have not publicly weighed in with defense or critique.
The actual document behind the noise is much subtler than the press release. More on that below.
Cheat sheet for those just getting their bearings
If you’re new to the U.S. immigration system, start with the basics—without them the rest won’t make sense.
There are two routes to a green card (permanent residence):
Filing Form I-485 from inside the U.S. The person is already here on some visa (H-1B work visa, F-1 student, O-1 for talents, B-1/B-2 tourist) and switches to permanent residence without leaving. Until the memo this was the standard route for most people already legally in the U.S.
Apply through a U.S. consulate abroad. The person waits for an interview in their home country, receives an immigrant visa, and enters the U.S. as a permanent resident.
The USCIS memo did not abolish AOS. It can’t, because AOS is codified in the law, in INA §245. The memo reframes officers’ approach to AOS: now treat it as an “extraordinary form of relief” rather than as a normal pathway.
So USCIS is calling “exceptional” what has been the mainstream practice for decades.
Cato Institute chart. Yellow = AOS approvals, blue = consular path. Source: DHS Yearbook of Immigration Statistics, State Department Immigrant Visa Issuances. CC BY-NC-SA 4.0.
If you prepare talent visas, your typical categories are: EB-1A (Extraordinary Ability), EB-2 NIW (National Interest Waiver), and O-1 (temporary work visa for extraordinary ability). EB-1A and EB-2 NIW are self-petition categories (you can file without an employer). O-1 is often used first, with EB-1A or NIW later.
The memo applies to all employment-based categories, including EB-1A, EB-2 NIW, EB-2, EB-3 and employment-based H-1B cases. Narrow exceptions in the memo are listed for historical groups: Cubans under a special 1966 act, certain Central American nationals under NACARA (1997), Haitians under HRIFA (1998), asylees and refugees, and U.S. military veterans. If you’re from Russia, Ukraine, Belarus, Kazakhstan, India, China or most other countries and preparing a talent visa, none of those exceptions cover you.
What the memo actually says. Direct quotes
The memo is short—six pages with 24 footnotes. I read it in full. Below are the key formulations in the original with translation, without interpretation.
The main new sentence that everything rests on. Page 5:
“The absence of adverse factors, by itself, does not demonstrate such unusual or outstanding equities.”
Translation: Absence of adverse factors, by itself, does not demonstrate such unusual or outstanding equities.
What this means. Previously the simple logic worked: if I have a clean history (no overstays, no unauthorized work, no fraud), the officer should approve. The memo flips that: a clean record is not enough. You must actively show something exceptional. The burden of proof shifts to the applicant.
Direct acknowledgement of H-1B and L-1 as dual intent visas. Page 5:
“USCIS reminds its officers that applying for adjustment of status is not inconsistent with simultaneously maintaining nonimmigrant status in a category with dual intent.”
Translation: USCIS reminds officers that applying for adjustment of status is not inconsistent with simultaneously maintaining nonimmigrant status in a category with dual intent.
What dual intent is. It’s the legal concept allowing holders of certain visas to simultaneously have temporary and permanent intent. It’s explicitly recognized only for H-1B and L-1. Good news: H-1B and L-1 are not automatically disqualified. Bad news: footnote 20 puts a limit on that.
“However, maintaining lawful status in a dual intent nonimmigrant category is not sufficient, on its own, to warrant a favorable exercise of discretion.”
Translation: However, maintaining lawful status in a dual intent nonimmigrant category is not sufficient, on its own, to warrant a favorable exercise of discretion.
What this means. Historically H-1B was the most protected category for AOS. The memo does not formally remove that protection, but it explicitly states: lawful dual intent status alone is insufficient. You need positive equities beyond simply “I am working in status.”
List of adverse factors. The memo on page 5 explicitly lists what officers should consider negative:
- violations of immigration laws or conditions of status;
- current or prior fraud or false testimony in interactions with USCIS or any government agency;
- misrepresentations in seeking admission or parole;
- conduct after admission inconsistent with the purpose of the admission;
- any signs that the person entered on a nonimmigrant visa with the intent to remain.
And emphasized separately on page 5:
“An alien's failure to comply with the conditions of their nonimmigrant admission or parole and an alien's failure to depart as expected are highly relevant to this analysis.”
Translation: An alien’s failure to comply with the conditions of their nonimmigrant admission or parole and an alien’s failure to depart as expected are highly relevant to this analysis.
What this means for common talent scenarios. If someone entered on a tourist or student visa (B-1/B-2, F-1) and stayed to file I-485, that is now a clear negative. USCIS’s logic: they could have gone home and applied via consulate. For O-1 this issue is softer because O-1 formally does not require an intent-to-return declaration (see O-1 below).
Procedural protection for applicants. Page 6:
“When the denial is based on an unfavorable exercise of discretion, the denial notice must include an analysis containing the positive and negative factors considered, along with an explanation of why the negative factors outweigh the positive factors.”
Translation: When the denial is based on an unfavorable exercise of discretion, the denial notice must include an analysis containing the positive and negative factors considered, along with an explanation of why the negative factors outweigh the positive factors.
What this means. An officer cannot simply write “denied as a matter of discretion.” The notice must list positives and negatives and explain why negatives outweigh positives. That gives applicants a formal basis for appeal or a motion to reopen.
What the memo promises for the future. Page 6:
“USCIS may provide policy guidance specific to certain adjustment of status categories or discrete populations of aliens.”
Translation: USCIS may provide policy guidance specific to certain adjustment of status categories or discrete populations of aliens.
What this means. This is only the first memo. USCIS explicitly announces a second wave with rules for specific groups: F-1 students, parolees, and possibly separate guidance for employment-based categories. Expect further memos in coming weeks/months.
The most protective phrase for talent visas. Kahler’s quote
This is the single line in the entire noise around the memo worth reading to the end for if you’re preparing EB-1A or NIW.
USCIS spokesperson Zach Kahler in comment to CBS News and in written response to Washington Post explicitly marked an exception. The precise formulation quoted in media via BBC/Yahoo News is:
“People who present applications that provide an economic benefit or otherwise are in the national interest will likely be able to continue on their current path while others may be asked to apply abroad depending on individualised circumstances.”
Translation: People whose applications provide an economic benefit or otherwise are in the national interest will likely be able to continue on their current path. Others may be asked to apply abroad depending on individualized circumstances.
Why this matters specifically for talent visas. EB-2 NIW literally stands for National Interest Waiver, and approval of that petition means USCIS already recognized the applicant’s work as in the national interest. EB-1A is extraordinary ability. Both categories are exactly those Kahler references as providing economic benefit or national interest. In other words, USCIS’s spokesperson publicly indicated that such applicants will not be treated as harshly as others.
This is not a guarantee—Kahler didn’t define specific criteria or explain exactly how officers will determine this. But it is a public promise from the agency’s spokesperson that you can cite in RFE responses and in discussions with counsel.
On the same day (May 22) Daily Caller published an exclusive quote from USCIS Director Joseph Edlow:
“Under President Trump, USCIS is returning to the original intent of the law and reinforcing the proper distinction between temporary admission and permanent residence.”
Translation: “Under President Trump, USCIS is returning to the original intent of the law and reinforcing the proper distinction between temporary admission and permanent residence.”
That is so far the only public comment from USCIS Director himself rather than through a spokesperson.
Where a lawyer will find an argument against a denial. Two old BIA decisions explained without legal jargon
If you receive an RFE or denial under the new memo, your attorney will look for support in older judicial decisions. These decisions matter because they determine what argument the lawyer can make in defense of your file.
In the U.S. there is a body that handles immigration appeals: the Board of Immigration Appeals (BIA). It’s something like the internal supreme immigration court. Two very old but still-valid BIA decisions on AOS matter a lot. One is applicant-friendly; the other is stricter. The memo relies only on the stricter one and ignores the friendly one. That omission is the main hook for lawyers.
Applicant-friendly decision. Matter of Arai, 1970. Imagine you apply for a green card and your record is clean: status complied with, taxes paid, no overstays or unauthorized work. Matter of Arai (1970) says in that case the officer should approve—this is the ordinary outcome. Exact phrasing:
The key word is “ordinarily.” Arai essentially says: clean record = normally approval. Only if there are adverse factors must the applicant show something exceptional to outweigh them.
Stricter decision. Matter of Blas, 1974. Four years later, in a case involving fraud, the BIA used the opposite tone: AOS is an “extraordinary form of relief” and should not be given as a matter of course. In context of that case that made sense—the applicant had actual fraud—but the phrase has persisted for decades and is now being used.
What USCIS did in the new memo. USCIS lifted the language from the stricter Blas (that AOS is an “extraordinary form of relief”) and applied it to all applicants, even those with no adverse history. The 2026 memo’s text omits any reference to the more applicant-friendly Arai. It’s as if USCIS forgot that the same BIA issued Arai.
What this gives you personally
If you receive an RFE or denial "as a matter of discretion," your attorney will have a ready argument: the memo relies only on strict Blas, but the controlling baseline decision on AOS is Arai, which says a clean history should be approved. USCIS cannot overturn a BIA decision by memo. This argument will be used in RFE responses and in future federal litigation against the memo.
The doctrinal critique along these lines was publicly formulated first by Cyrus D. Mehta. He is a widely respected immigration attorney, former chair of AILA New York Chapter. When Mehta writes on immigration matters, lawyers, journalists, and judges read him. In X.com Mehta commented almost immediately after the memo’s release; his quote is cited via Forbes:
“While adjustment of status is discretionary under INA 245 it has never been interpreted as an extraordinary form of relief and USCIS is inventing a new standard to deprive noncitizens from getting green cards in the U.S.”
Translation: “While adjustment of status is discretionary under INA 245 it has never been interpreted as an 'extraordinary form of relief'. USCIS is inventing a new standard to deprive noncitizens from getting green cards in the U.S.”
Mehta called interpreting the word “may” in INA 245(a) as “extraordinary” a “giant unfaithful leap” and tied the issue to the Supreme Court’s Loper Bright decision (2024). Loper Bright eliminated the Chevron doctrine where courts historically deferred to agency interpretations. After Loper Bright courts decide the law independently and are not required to follow USCIS’s interpretation, which strengthens plaintiffs’ position in future challenges.
What lawyers themselves are saying. Three camps
Opinions after the memo split sharply. To make it easier, I divide lawyers into three rough camps. For each I note who they are and why their view matters.
Critics camp. “This is an overreach; there will be litigation.”
Michael A. Harris (HarrisLaw P.A., Miami). Immigration lawyer since 2000. Board Certified Specialist in immigration law in Florida (a certification held by fewer than 1% of Florida immigration attorneys). One of the first to publish a full legal analysis of the memo on May 22. Full analysis.
Harris advances three attack lines. First: the memo contradicts the statute itself.
“INA §245(a) does not say that adjustment may be granted only when consular processing is unavailable. It does not require an applicant to prove extraordinary circumstances.”
Translation: “INA §245(a) does not say that AOS is granted only when consular processing is unavailable. It does not require an applicant to prove extraordinary circumstances.”
Second: USCIS misuses case law. Most cases cited in the memo arose in removal proceedings or involved applicants with criminal/fraud histories. Applying that logic to a law-abiding H-1B worker who complied with status, Harris says, is strained.
Third: APA vulnerability. Under the Administrative Procedure Act agency decisions can be challenged if they are “arbitrary and capricious.” Harris writes:
“If USCIS denies a case primarily because the applicant chose adjustment rather than consular processing, even though Congress allowed adjustment, the denial may be vulnerable as contrary to law or arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. §706.”
Translation: “If USCIS denies a case primarily because the applicant chose AOS rather than consular processing, despite Congress allowing AOS, such a denial may be challenged as contrary to law or arbitrary and capricious under the APA.”
Robert Carpenter (Minsky McCormick & Hallagan, Chicago). Senior Litigation Attorney with 33+ years’ experience. Specializes in federal court litigation against USCIS, including APA challenges. When a veteran like this speaks, it’s a signal. Carpenter’s analysis.
Carpenter’s main observation:
“The memorandum does NOT change any laws or regulations and does NOT eliminate adjustment of status as a legal avenue to apply for a green card.”
Translation: “The memorandum does NOT change any laws or regulations and does NOT eliminate AOS as a legal avenue to apply for a green card.”
Carpenter also notes the memo was issued as an “unsigned, unattributed memorandum” (no clear author attribution). That detail matters procedurally in court challenges.
Angelo Paparelli. One of the most-cited employer-side immigration attorneys in the U.S., partner at Vialto Law (US) LLP. Former president of AILA Southern California chapter. He published his analysis on LinkedIn on May 22. His central argument: Congress has for decades embedded AOS into the immigration architecture, especially for employment-based cases. He notes:
“Section 245(k) explicitly anticipates up to 180 days of unlawful status, unauthorized employment, or other violations after admission and says, in effect, 'you can still adjust.' That is not how you treat a rare indulgence; that is how you normalize real-world bumps in an otherwise meritorious case.”
Translation: “Section 245(k) explicitly allows up to 180 days of unlawful status, unauthorized employment, or other violations after admission and effectively says, ‘you can still adjust.’ That is not how you treat a rare indulgence. That is how you normalize real-world bumps in an otherwise meritorious case.”
Paparelli expands this logic to AC21 portability and the Child Status Protection Act (CSPA). His conclusion:
“If USCIS wants to lean on that narrative, it needs to grapple openly with how 245(k), AC-21, CSPA, and 245(c) have transformed adjustment from a narrow act of grace into an integral, congressionally-structured pathway.”
Translation: “If USCIS wants to adopt that narrative, it must openly confront how 245(k), AC-21, CSPA, and 245(c) have transformed AOS from a narrow act of grace into an integral, congressionally-structured pathway.”
Moderates camp. “The law didn’t change, but the game got tougher.”
Sheela Murthy (Murthy Law Firm, Baltimore). A highly recognized figure in the U.S. immigration community; her firm founded in 1994 runs MurthyDotCom. Strong in employment- and family-based cases from India and China—the main source of pending I-485s. Murthy is not alarmist; when she says “it will be tougher,” that’s a significant practical warning. Her newsflash of May 22:
“USCIS intends to apply heightened scrutiny in green card adjudications going forward.”
Translation: “USCIS intends to apply heightened scrutiny in green card adjudications going forward.”
Boundless. Not a traditional law firm but a legal-tech company (Seattle) offering semi-online filing services with partner attorneys. They have a commercial interest in preventing panic. Still, after internal legal review they announced they will continue filing AOS:
“That is not how I personally read the memorandum. The closest statement is in case citations, but even there the citations just state that adjustment of status is discretionary, it's the noncitizen's burden of proof, and adjustment should only be granted in meritorious cases.”
Translation: “That is not how I personally read the memorandum. The closest statement is in case citations, but even there the citations only state that AOS is discretionary, the burden is on the noncitizen, and adjustment should be granted in meritorious cases.”
Boundless’s key observation
the phrase “only in extraordinary circumstances” does not appear in the memo itself. That phrase appears only in the press release. It’s political spin, not an operational instruction to officers.
Wolfsdorf Rosenthal (WR Immigration). One of the largest dedicated immigration firms in the U.S. Their client alerts influence HR departments at major corporations. Their analysis:
“This memorandum largely serves as a reaffirmation of USCIS's longstanding position that adjustment of status is discretionary and not guaranteed solely because an applicant satisfies the baseline eligibility requirements.”
Translation: “This memo mainly reaffirms USCIS’s longstanding position that AOS is discretionary and not guaranteed merely because an applicant meets baseline eligibility requirements.”
Alarmists camp. “Catastrophe, prepare for the worst.”
Rahul Reddy (Reddy Neumann Brown PC, Houston). Firm founded 1997; 28+ years in employment-based immigration. Co-founder of ITServe Alliance—his client base includes tens of thousands of Indian H-1B engineers with long backlogs. When he publishes an alarmist headline, it’s a client signal, not marketing.
Reddy’s headline: “Pending Adjustment (I-485) Cases in Danger. Is This the End of the Road for AOS?”
“If your I-485 has been sitting at USCIS for months or years, this memo applies to you starting now. Eligibility is no longer enough. Worthiness is the new standard.”
Translation: “If your I-485 has been sitting at USCIS for months or years, this memo applies to you now. Eligibility alone is no longer enough. ‘Worthiness’ is the new standard.”
David J. Bier (Cato Institute). Director of Immigration Studies at Cato. Former senior policy adviser to Rep. Raúl Labrador and a noted policy researcher whose work has been cited by the Supreme Court. Bier’s analysis:
“Now, every legal immigrant must leave the country, that is, self-deport, even if they are qualified for a green card and even if leaving would disqualify them.”
Translation: “Now every legal immigrant must leave the country—effectively self-deport—even if they qualify for a green card and even if leaving would disqualify them.”
Another Bier quote via Washington Post:
“It's like someone from 1940s America has taken over the immigration system. Adjustment of status has been a normal part of operations in immigration law for over 70 years. There's nothing extraordinary about it.”
Translation: “It’s like someone from 1940s America has taken over the immigration system. AOS has been a normal part of immigration law for over 70 years. There is nothing extraordinary about it.”
Bier adds context: USCIS has already cut green card approvals roughly in half over the past year, mostly by not adjudicating applications. The memo formalizes what had been quiet slowdown into a plan for mass denials.
Cato Institute chart. Monthly AOS approvals by category Oct 2024–Jan 2026. Drop of more than half. Source: USCIS Number of Service-Wide Forms by Month. CC BY-NC-SA 4.0.
Doug Rand. Former Senior Advisor to the Director of USCIS (2021–2025). His commentary is valuable because he worked inside USCIS through the Biden administration. Via CBS News:
“The purpose of this policy is exclusion. Remember that Trump has banned people from over 100 countries from returning to the U.S., so forcing them to go abroad for consular processing is no pathway at all.”
Translation: “The purpose of this policy is exclusion. Remember Trump banned people from over 100 countries from returning to the U.S., so forcing them to apply abroad is no pathway at all.”
Michael Valverde. Former senior USCIS official across administrations, who left last year. Valverde is a nonpartisan bureaucrat whose judgment carries weight; calling the move “unprecedented” is significant. Via BBC/Yahoo:
“This is a largely unprecedented move that will limit lawful immigration to the US greatly. People who followed the rules faithfully now face tremendous uncertainty.”
Translation: “This is a largely unprecedented move that will greatly limit lawful immigration to the U.S. People who followed the rules faithfully now face tremendous uncertainty.”
Elissa Taub (Siskind Susser). Partner at the well-known immigration firm; comment in Newsweek:
“This announcement by USCIS to further restrict legal immigration within the United States by effectively eliminating the Adjustment of Status process will not only cause severe hardship to families of U.S. citizens forced to separate for an indefinite time period, but it will also result in the loss of talent.”
Translation: “This USCIS announcement to further restrict legal immigration within the U.S. by effectively eliminating AOS will cause severe hardship to families of U.S. citizens forced to separate for an indefinite period, and will result in the loss of talent.”
Liz Goss (Goss Associates, Boston). Founder of a boutique firm in Boston, strong in employment-based cases for biotech and pharma. Via Forbes:
“The memo could affect everyone, including H-1B visa holders, people on Temporary Protected Status and others. The memo states that it is up to an officer's discretion.”
Translation: “The memo could affect everyone, including H-1B holders, TPS beneficiaries, and others. The memo expressly leaves decisions to an officer’s discretion.”
Goss highlights the counterargument about vetting: these people were already vetted for temporary visas; the issue is not security. Affected groups include doctors, professors, researchers and CEOs.
What’s being said about O-1, EB-1A and EB-2 NIW specifically
This is probably the section most readers came for. I summarize what published attorneys are actually saying—no personal advice.
O-1 — the audience’s most frequent question
The memo explicitly names only H-1B and L-1 as dual intent on page 5. O-1 is not named. That created immediate questions: what about O-1?
For context: O-1 formally does not require an intent-to-return; per 9 FAM 402.13-10(a) (the State Department guidance for consular officers) “An applicant for an O-1 visa does not have to have a residence abroad which they do not intend to abandon.” Because of that O-1 is treated as quasi-dual intent in practice: not full dual intent like H-1B/L-1 but not strictly single intent like F-1/B.
The clearest public position on O-1 after the memo comes from Ballard Spahr (large multi-practice firm). Their immigration practice is well regarded. Their analysis:
“O-1 status is not officially a dual-intent status, although it is treated as permitting 'quasi' dual-intent. H-1B and L-1 status are the only two nonimmigrant categories that explicitly allow for dual intent.”
Translation: “O-1 is not officially dual intent, though it’s treated as permitting ‘quasi’ dual intent. H-1B and L-1 are the only nonimmigrant categories that explicitly allow dual intent.”
Boundless sounded more concerned:
“O-1 visa holders could also be more directly impacted as it is not explicitly designated as dual intent under the statute. O-1 holders should consult with counsel before proceeding with an AOS application in the current environment.”
Translation: “O-1 holders could be more directly impacted because O-1 is not explicitly dual intent under the statute. O-1 holders should consult counsel before filing AOS in the current environment.”
Wolfsdorf places O-1 in the category that may receive increased scrutiny but not catastrophe:
“TN, O-1, E-3, H-1B, E-2 visa holders should work with their employer and counsel to monitor the memorandum's impact on these cases as they may receive additional scrutiny.”
Translation: “TN, O-1, E-3, H-1B, E-2 holders should work with employer and counsel to monitor the memo’s impact, as these cases may receive additional scrutiny.”
The risk hierarchy that Ballard Spahr and Boundless converge on: lowest risk H-1B/L-1, medium risk O-1 (quasi-dual), higher risk TN/E-3, highest risk F-1, J-1 and B.
What’s found in public sources (and what’s not). Major outlets (Forbes, Reuters, AP, NYT, Newsweek, Bloomberg, ABC, NBC, CBS) do not have separate deep dives on O-1 after the memo. Murthy didn’t mention O-1 in her newsflash. Reddy Neumann Brown published guidance for H-1B/L-1 only. So consensus on O-1 is still forming via several large firms.
A realistic summary: no fully reassuring public positions on O-1, nor fully alarmist ones. O-1 is less protected than H-1B/L-1 but more than TN, E-3, F-1 and B. Boundless recommends consulting counsel before filing AOS.
EB-1A and EB-2 NIW
The most useful observation for high-skilled applicants came from LexElite Law. Their analysis:
“For high-skilled applicants, that often means the very evidence that drives the underlying petition, extraordinary achievement, contributions to the United States, the national importance of the work, should be repackaged to do double duty as discretionary equities.”
Translation: “For high-skilled applicants, the very evidence that supported the underlying petition—extraordinary achievements, contributions to the U.S., the national importance of the work—should be repackaged to serve double duty as discretionary equities.”
And on the connection to Kahler’s category:
“If you are an L-1, H-1B, O-1, or E visa holder adjusting through, say, an EB-1A or EB-2 National Interest Waiver petition, you cannot assume that because you kept status flawlessly, discretion is automatic. Keeping status keeps you eligible. Under this memo, it does not, by itself, earn you the grant.”
Translation: “If you are an L-1, H-1B, O-1, or E visa holder adjusting via EB-1A or EB-2 NIW, you cannot assume that flawless maintenance of status guarantees favorable discretion. Maintaining status makes you eligible; under this memo that alone does not earn approval.”
LexElite’s main practical angle
the evidence of extraordinary ability or national importance that got your I-140 approved now needs to be reused and reframed to show "outstanding equities" under the memo’s language. It’s the same story told a second time with a different legal focus.
Murthy emphasizes a key nuance about entry scenarios. If a NIW applicant entered on B-1/B-2 or F-1, the new reality raises a “preconceived intent” argument (i.e., USCIS may claim the person came with intent to stay). That’s the most vulnerable scenario. O-1 holders don’t face that problem because O-1 does not require a return-home declaration.
Silence of insiders and think tanks. What they’re not saying
A separate diagnostic observation worth recording. As of May 23, 2026—48 hours after the memo—an entire category of sources that usually provide deep analysis is silent. That silence itself is telling.
Former DOJ and USCIS insiders are silent
In January 2026 two former top DOJ attorneys launched the firm Ariela Lake Law & Consulting: Sarah Lake Vuong (former Assistant Director, DOJ Office of Immigration Litigation and former Associate Counsel in USCIS Office of Chief Counsel) and Jess Ariela Dawgert (former Associate Deputy Attorney General and Senior Litigation Counsel at DOJ). Both are barred in the Supreme Court. These are people who literally wrote and defended immigration policy in court over the past 15 years. Their public take on the memo would normally be highly valuable. As of May 23 they have not publicly commented.
Possible reasons for their silence: the firm just opened in January and may not have built a public content channel; DOJ post-employment ethics restrictions (often 1–2 years) may limit public comment on policies they worked on; or they may be quietly preparing litigation strategies for clients.
Their public voice is likely to appear once the first RFE/NOID wave shows how officers apply the memo on the ground—expect commentary in 2–6 weeks.
Other think tanks are quiet. Cato/Bier temporarily monopolizes analysis
I checked 15 major think tanks: Migration Policy Institute, NFAP (Stuart Anderson), American Immigration Council, Niskanen Center, AEI, Heritage Foundation, Brookings, Center for American Progress, FAIR, CIS, EPI, Bipartisan Policy Center, R Street, Manhattan Institute, Hoover. As of May 23 only Cato Institute (David Bier) published its own analysis of PM-602-0199 within the 21–23 May window. All others are silent.
Notably the anti-immigration think tanks (Heritage, FAIR, CIS), which usually rush to publish supportive legal texts for restrictive policies, are quiet. Their usual spokesman on legal-regulatory defense, Andrew Arthur (CIS), typically reacts within 24–48 hours; here he is silent. That could mean the memo is perceived as technical repackaging of existing discretion that doesn’t need defense, or that they’re waiting for litigation before commenting, or that they agree with critics about the memo’s legal weakness and don’t want to risk reputation.
For readers: note who speaks and who is silent. Cato (often critical of federal power) released a harsh analysis; Heritage and CIS (usually supportive of restriction) did not defend the memo. That’s a strong signal the memo may be legally weak. If defensive materials don’t appear from them within 2–3 weeks, that’s additional factual ammunition for APA suits.
Where I’ll be watching in the coming weeks
- USCIS Policy Manual, Volume 7, Part A, Chapter 10 (Legal Analysis and Use of Discretion). When and if they rewrite it to reflect the memo. That internal manual is the primary operational guide for officers—changes there will show how USCIS wants the memo applied on the ground.
- Federal Register for possible USCIS RINs. If the agency attempts to codify the memo via notice-and-comment rulemaking that’s a signal the policy is being hardened into regulation.
- Blogs: Cyrus Mehta, Murthy newsroom, Reddy Neumann Brown. Deep doctrinal analysis typically appears 5–14 days after an event. Expect Mehta to publish detailed Loper Bright line analysis.
- Forbes column by Stuart Anderson. Anderson leads NFAP and his Forbes pieces often precede official NFAP notes by a few days.
- LinkedIn and the Ariela Lake Law site. If Vuong and Dawgert comment publicly, read it closely.
- First suits in district court. Who files first, on what grounds (APA arbitrary and capricious, conflict with INA §245, or procedural arguments under 5 U.S.C. §553), and in which circuit. The Ninth Circuit’s reactions are especially interesting given its usual pro-applicant tilt on immigration issues.
- Reddit communities r/USCIS and r/immigration for first reports of actual RFEs and NOIDs issued under the new standard. Those will show how widely officers apply the memo.
- Subsequent USCIS memos for discrete applicant groups. PM-602-0199 page 6 explicitly announces that. The most likely next memos: parolees (CHNV, Uniting for Ukraine), F-1 students, B visa entrants.
Short summary
USCIS issued PM-602-0199 on May 21 (published May 22). The memo recharacterizes AOS as an "extraordinary form of relief." AOS is not abolished and cannot be abolished by memo, but the burden has shifted: a clean record is no longer enough—applicants must show "outstanding balancing equities."
USCIS spokesperson Zach Kahler via CBS News, WaPo and BBC: applicants who provide "economic benefit" or are in the "national interest" will likely be able to continue AOS from inside the U.S. EB-1A and EB-2 NIW are by definition these categories. This quote is worth remembering and using in discussions with counsel.
The memo relies on the strict BIA decision Matter of Blas (1974) and ignores the applicant-friendly Matter of Arai (1970). Lawyers (Harris, Mehta, Paparelli, Carpenter) promise APA challenges in federal court. Loper Bright (2024) strengthens plaintiffs because courts no longer must defer to agency interpretation.
Critics (Harris, Mehta, Paparelli, Carpenter): memo is legally vulnerable—there will be litigation. Moderates (Murthy, Boundless, Wolfsdorf, Harris Beach Murtha): law unchanged but standard tightened. Alarmists (Reddy, Bier, Rand, Valverde, Taub, Goss): catastrophe. All agree: file I-485 as a complete package with active positive equities, not a formal attachment to an approved I-140.
O-1 sits in quasi-dual intent territory: less protected than H-1B/L-1 but more than TN, E-3, F-1 and B. No fully reassuring public positions on O-1 yet. For EB-1A and EB-2 NIW LexElite’s main defense: reuse the extraordinary ability and national importance evidence that supported the I-140 to show "outstanding equities."
Former top DOJ lawyers (Vuong, Dawgert) are silent. Of 15 major think tanks only Cato/Bier published an analysis. Anti-immigration think tanks are silent. This is a strong signal the memo may be legally shaky.
Awaiting separate USCIS memos for specific groups and the first federal lawsuits. Realistically by end of June.
Disclaimer
Informational nature of the materials
I am not a licensed U.S. attorney and do not provide legal services. This material is not legal advice and does not substitute for it. For advice on your specific case consult a licensed U.S. immigration attorney with an active license.
