USCIS Now Treats a Green Card From Inside the U.S. as Extraordinary. That Policy Is in Federal Court.

On October 5, 2026, a coalition of unions, a faculty association, a legal services provider and individual green card applicants sued the Department of Homeland Security and USCIS in the District of Massachusetts. American Association of University Professors v. Mullin, No. 1:26-cv-14527, challenges two policies that, together, change how every pending Form I-485 is decided: one makes discretion a presumption against approval, and the other removes the warning before a denial.

Both policies remain in effect. Nothing in the filing of a complaint changes how USCIS adjudicates a case today.

The two policies

The May 2026 discretion memo. On May 21, 2026, USCIS issued PM-602-0199, titled "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." According to the complaint, the memo directs officers to treat adjustment as an extraordinary form of relief and, drawing on Matter of Blas, to deny an application absent "unusual or even outstanding" countervailing considerations. In practical terms, an applicant who meets every statutory requirement can still be denied, with the choice to file inside the United States rather than through a consulate counted against them.

The August 2026 evidence policy. On August 5, 2026, USCIS issued PA-2026-05, "Evidence, Requests for Evidence, and Notices of Intent to Deny." It allows officers to deny when required initial evidence is missing or insufficient, without first issuing a request for evidence or a notice of intent to deny, and it applies to cases already pending on that date. We covered the operational effect of that change in August; the lawsuit now challenges it directly.

Combined, the two policies mean an application can be denied on discretion, without a chance to add the evidence that would have answered the officer's concern.

Why the stakes are large

Adjustment of status is not a niche path. The complaint cites DHS's own statistics: in fiscal year 2024, 782,800 of 1,364,090 people who became permanent residents, 57 percent, did so by adjusting status inside the United States. That population includes most employment-based green card holders, whose employers sponsored them while they worked here in H-1B, L-1 or O-1 status, and most spouses and parents of U.S. citizens.

The statute, 8 U.S.C. 1255(a), sets the eligibility conditions: the applicant must have been inspected and admitted or paroled, must be eligible for an immigrant visa and admissible, and must have a visa immediately available. The plaintiffs' core argument is that a policy treating the use of that statutory path as a reason to deny turns the statute's design on its head.

What the lawsuit asks for

The complaint pleads six counts, principally under the Administrative Procedure Act, and asks the court to set the policies aside. Counsel are the American Immigration Council, the American Immigration Lawyers Association, Democracy Forward and Colombo & Hurd. As of this writing we have not confirmed a motion for a preliminary injunction or a stay under 5 U.S.C. 705. Until one is filed and granted, the policies govern every adjudication.

What this means for employers and families

The record has to carry the discretion question on its own. Under the May memo, eligibility is no longer enough. An application that proves the statutory elements and stops there invites a discretionary denial. Positive equities should be documented in the initial filing, not saved for a response the officer is no longer required to request.

A denial now has more consequences. A denied I-485 ends the work and travel authorization that depended on it, and it can leave an applicant without status if the underlying nonimmigrant status has lapsed. For employers, that is a continuity problem for the employee and a reverification event for the company.

Consular processing is not automatically safer. The memo's logic pushes applicants toward consulates, but consular cases now carry their own constraints: in person interviews, applying in the country of nationality or residence, and Proclamation 10998 for nationals of listed countries. The choice between adjustment and consular processing has to be made case by case.

What to do

1. File every I-485 as if it will be decided on discretion with no request for evidence. Include a documented statement of equities: employment and tax history, length of lawful presence, family ties, community involvement, and any hardship a departure would cause.
2. Review pending cases now. Where an application went in before May 21 with eligibility evidence only, consider a proactive supplement addressing discretion.
3. For sponsored employees, keep the nonimmigrant status alive where possible (H-1B or L-1 extensions) instead of relying solely on the pending I-485.
4. Calendar every response deadline exactly as stated in the notice. Do not assume a standard response period.
5. If a denial issues, act quickly. A denial under these policies may be challengeable by motion, appeal or in federal court, and the outcome of this lawsuit may affect the analysis. Preserve the full record.
6. Watch the docket in No. 1:26-cv-14527 for a preliminary relief motion; the timing of any order will matter for cases decided this fall.

Authorities

• American Association of University Professors v. Mullin, No. 1:26-cv-14527 (D. Mass., filed Oct. 5, 2026), complaint (ECF No. 1).
• USCIS Policy Memorandum PM-602-0199 (May 21, 2026), as described in the complaint.
• USCIS Policy Alert PA-2026-05, "Evidence, Requests for Evidence, and Notices of Intent to Deny" (Aug. 5, 2026).
• 8 U.S.C. 1255(a); Matter of Blas, 15 I&N Dec. 626 (BIA 1974; A.G. 1976).
• DHS Office of Homeland Security Statistics, Table 6, Persons Obtaining Lawful Permanent Resident Status, Fiscal Years 2015 to 2024.
• Administrative Procedure Act, 5 U.S.C. 705, 706.