On May 21, 2026, USCIS issued a new policy memo called PM-602-0199. The memo is causing a lot of worry across the immigration community. We are writing this just two days after the memo was published. We want to walk you through what it actually says, what it does not say, and what it means for our EB-3 applicants.
The short version: this memo is a warning shot, not a rule change. It makes life harder for some applicants who are already inside the United States, but it does not change the law. For most of our EB-3 workers, the path to a green card looks the same as it did last week. For a smaller group, the path needs to be planned more carefully. We will explain who is in which group below.
A note on what we know and what we do not know yet. Because the memo is brand new, we have not yet seen how USCIS officers are applying it in real cases. In the coming weeks and months, we will see actual decisions come out, and we will get a much clearer picture of how aggressive USCIS is being. We will send updates as we learn more.
What the memo says
The memo tells USCIS officers three things.
One. Adjustment of status is a favor and not a right. Even if a worker meets every legal rule, the officer can still say no.
Two. The government prefers that workers go through consular processing instead of adjustment of status.
Three. Officers should treat the choice of adjustment of status over consular processing as a point against the worker. The memo also says that breaking the rules of a visa, like overstaying or working without permission, are big points against the worker too.
The memo does not change any law. It does not change who is allowed to file a green card application. It changes how USCIS officers are supposed to think about those applications when they review them.
The case law the memo leaves out
Here is the part the memo does not talk about, but every immigration lawyer knows.
In 1970, the Board of Immigration Appeals decided a case called Matter of Arai. The Board said something very important in that case. When a worker has no bad marks on their record, their green card application “will ordinarily be granted.” Those are the Board’s exact words. That case is still the law today. It has never been overruled.
A few years later, in 1978, the Board decided Matter of Marin. That case listed the good things that count in a worker’s favor. The list includes:
- Family ties in the United States
- A history of employment
- Property or business ties
- Value and service to the community
- Good moral character
- Long, stable residence in the country
In 1996, the Board decided Matter of Mendez-Moralez. That case told officers to weigh the good and bad sides of every application and decide what is in the best interest of the country.
Put those three cases together and you get the rule that has controlled green card applications for over fifty years. If the worker has no bad marks, the application should normally be approved. If there are bad marks, the worker has to show enough good things to outweigh them.
The new memo tries to change this without saying it is changing it. It tries to turn the simple choice of adjustment of status into a bad mark by itself, before the officer even looks at what the worker actually did. That is a big shift, and we believe it goes too far. The case law still says what it says. But the memo means that workers can no longer assume an officer will reach the right answer on their own. The good record has to be built into the application from the start.
Why most EB-3 Other Workers are still in good shape
The EB-3 Other Worker category exists for a reason. U.S. employers cannot find enough American workers willing to do certain jobs. These are jobs in restaurants, hotels, factories, cleaning services, and construction. Before any worker can be sponsored, the employer has to test the job market through a long process called PERM. PERM proves that no qualified American is available for the job. The federal government has to approve that finding.
The typical EB-3 worker we represent fits the Matter of Marin list almost perfectly:
Clean immigration record. Most of our workers are still in their home country when we file. They have never been in the U.S. in any status. The ones who are in the U.S. have followed every rule of their visa.
A real job at a fair wage. PERM and the I-140 process already prove the job is real and the employer can pay. The worker is not taking a job from any American.
A history of working. Marin says employment counts as a good factor. EB-3 workers come here to work full time, pay taxes, and contribute.
Paying taxes, not taking benefits. Green card holders pay federal, state, and Social Security taxes from their first paycheck. They also cannot use most federal benefits, like food stamps or Medicaid, for their first five years. The money flows from the worker to the government, not the other way.
Helping the local economy. When an EB-3 worker fills a job, the business stays open. That keeps the American supervisors and managers employed too. It keeps the business paying state and local taxes. It keeps the local economy running.
Value to the community. Federal courts have said that economic contribution counts as service to the community. A worker who shows up every day, pays taxes, and supports a family is contributing in the most real way possible.
For this worker, the case for a green card is strong. But under the new memo, we have to make that case clearly, on the record, in the application itself. We cannot count on an officer to figure it out.
The situation for workers on H-2B, J-1, and F-1 OPT visas
This is the part of the memo that hits some workers different than others.
H-2B, J-1, and F-1 OPT are what immigration lawyers call single-intent visas. When a worker enters the U.S. on one of these visas, they are saying they only plan to stay temporarily. They are supposed to go home when the visa ends.
The memo says that if a worker on one of these visas files for adjustment of status, that looks like the worker always planned to stay. The memo treats that as a point against the worker.
We want to be straight with you about where things stand. This memo was published on May 21, 2026, just two days ago. We do not yet know how USCIS officers will actually apply it to real cases. In the coming weeks and months, we will see actual decisions come out and we will learn whether officers are denying clean H-2B, J-1, and F-1 OPT cases, asking for more evidence, or approving them as before. We will be monitoring this closely and we will send updates as we learn more.
For now, if you are on an H-2B, J-1, or F-1 OPT visa, our recommendation is to keep an open mind to consular processing when your priority date becomes current. We are not telling you that adjustment of status is off the table. We are telling you that consular processing is the cleaner path under this memo, and it may turn out to be the path we recommend once we see how USCIS is actually deciding these cases.
We will look at every case individually when the time comes. By then, we will have months of real data on how USCIS is handling these applications, and we will be in a much better position to advise you on which path gives you the best chance of approval.
For workers on H-1B or L-1 visas, the situation is different. These are called dual-intent visas, which means the law allows the worker to have immigrant intent. These workers cannot be denied just for planning to stay. But the memo notes that simply holding a valid visa is not enough by itself to guarantee approval. The officer must still look at the whole picture. The full record of good factors still needs to be built into the application.
Workers with applications already filed
A small group of our EB-3 workers already have adjustment of status applications, called I-485s, sitting at USCIS waiting to be decided. These are workers who were able to file in late 2023 or 2024 when the visa numbers briefly allowed it.
The memo took effect immediately on May 21, 2026. There is no grandfather clause. That means these pending cases will be reviewed under the new standard.
For our workers in this group, we are not waiting. We are putting together extra evidence to add to your file. This includes:
- An updated letter from your employer confirming you still work there
- Tax returns and W-2s for every year you have been working
- Proof of community ties, like school records for your children or membership in a church or community group
- A legal brief explaining why your case meets the standard under Matter of Arai, Matter of Marin, and Matter of Mendez-Moralez
The point is to give the USCIS officer a complete favorable picture before they ever pick up your file. It is much better to do this now than to wait for a Request for Evidence or a denial.
If you have a pending I-485 with us, your case manager will be in touch about what we need from you.
Will the courts strike this memo down?
We expect lawsuits to be filed against this memo in the coming weeks. Here is why we think the memo is vulnerable:
It conflicts with Matter of Arai. The Board of Immigration Appeals said in 1970 that adjustment of status will ordinarily be granted when there are no bad marks. The memo tries to change that without overruling the case. USCIS does not have the power to do that by memo.
It conflicts with what Congress wanted. When Congress wrote the adjustment of status rules, it listed exactly who is barred from filing. The memo punishes workers who are not on that list, simply for choosing a path Congress allowed.
It skipped the rulemaking process. Big changes to how the government runs immigration are supposed to go through a public notice-and-comment process. The memo did not. Federal courts have struck down memos like this before. We saw it with the 2017 H-1B memo, the 2018 NTA memo, the 2019 public charge rule, and the 2020 unlawful presence memo.
But there is a catch, and it is called Patel v. Garland
Here is the part most people do not talk about, and we want to be honest with you.
In 2022, the U.S. Supreme Court decided a case called Patel v. Garland. The Court said that when USCIS denies an adjustment of status application as a matter of discretion, federal courts generally cannot review that decision. The memo actually points to this case. It is the agency’s strongest shield.
What this means in plain English: if a USCIS officer denies your I-485 because they decided not to grant adjustment of status, you usually cannot take that to federal court. The denial is mostly final.
What Patel does not stop is a bigger lawsuit attacking the memo itself, arguing that USCIS did not have the power to issue it. That kind of lawsuit goes after the rule, not the individual denial. We expect the immigration bar to file that kind of lawsuit soon, and that is the realistic path to getting the memo blocked.
The practical message for our workers is this. Because individual denials are hard to appeal, the application itself has to be perfect when we file it. There is no easy way to fix a denial after the fact. That is why we put so much work into the front end. Under this memo, that work matters more than ever.
Timing is on our side for future filings
Here is some good news. Almost none of our EB-3 Other Worker applicants can file an I-485 right now anyway, because their priority date is not current.
According to the June 2026 Visa Bulletin, the current cutoff date for EB-3 Other Workers is:
- All countries (where our applicants come from): August 1, 2022
If your priority date is after August 1, 2022, you are waiting in line and cannot file yet.
For most of you, the priority date will not become current for years. By the time it does, one of three things will have happened:
- A court will have blocked the memo
- A court will have narrowed it so it does not apply to clean cases like yours
- The memo will still be in force, and we will be ready with a fully built record
In every one of these scenarios, your case is in good shape.
Also worth saying: most of our EB-3 applicants are still in their home country. They will go through consular processing when the time comes. The memo does not apply to consular processing at all. If you are overseas, this memo does not change anything for you.
How EB3.work has always protected your options
Every time we file an I-140 green card petition, we mark it for consular processing as the preferred path. We do this for every applicant, automatically, as part of our standard practice. We have done it this way since long before this memo came out.
That decision protects you no matter what happens next. When your priority date becomes current, you have two doors open:
- Consular processing in your home country. This memo does not touch you.
- Adjustment of status from inside the U.S., if you are here in a category that supports it, with a fully built record of good factors.
For our H-2B, J-1, and F-1 OPT applicants, we will be watching how USCIS handles these cases over the coming months. By the time your priority date becomes current, we will know much more about whether adjustment of status is realistic or whether consular processing is the safer call.
What to do now
The action items depend on which group you are in.
If you are overseas waiting on your priority date: Do nothing different. Keep working. Keep your case manager updated on any changes like marriage, divorce, a new child, a new passport, or a move. The memo does not affect you.
If you are in the U.S. on H-2B, J-1, or F-1 OPT: Stay in status. Keep working. When your priority date gets close, we will look at how USCIS has been handling these cases and decide together whether adjustment of status or consular processing is the right move for you.
If you are an employer client thinking about sponsoring more workers: Keep going. The pipeline still works. The PERM process and the I-140 are not affected by this memo. The pathway is still there, especially for workers who will go through consular processing.
Bottom line
This memo potentially makes adjudication harder, but it does not close the door. The law that has controlled adjustment of status decisions for over fifty years still controls. The cases that say a clean record and strong equities lead to approval, Matter of Arai, Matter of Marin, and Matter of Mendez-Moralez, are still good law.
