The New I-485 Reality 3: What Different Applicants Should Expect？

The first two articles in our “The New I-485 Reality” series explained the policy framework and major shifts introduced by the new memorandum. In practice, however, the impact will vary significantly depending on the applicant’s immigration history, visa category, and overall case profile.  

This article takes a closer look at how the memo may affect different employment-based immigrant categories — and what applicants and employers should be thinking about now.

EB-1 (Extraordinary Ability / Multinational Executives)

Although EB-1 applicants generally have stronger credentials, the memo’s underlying logic still applies. USCIS may now look more closely at whether the applicant “could reasonably have completed the immigrant visa process through consular processing abroad.”

For EB-1 applicants who have consistently maintained lawful nonimmigrant or dual-intent status — such as long-term H-1B or L-1 holders — and who have substantial ties in the United States, the argument for adjustment of status (AOS) becomes stronger. Factors such as:

• Long-term employment in the U.S.

• U.S. citizen spouse or dependent children

• Consistent tax filings

• Established personal and professional ties

may help demonstrate that adjustment of status within the United States is justified by “special equities” outweighing the expectation of consular processing.

However, applicants with more complicated immigration histories may face greater scrutiny. For example:

• Prior F-1 status gaps

• Entering on B-1/B-2 and quickly pursuing immigration benefits

• Unclear status transitions or inconsistent immigration history

could trigger questions about why the applicant did not pursue the immigrant visa process abroad. In these situations, USCIS may expect a much stronger showing that the applicant’s extraordinary ability, executive role, or unique business importance itself constitutes an “outstanding equity” justifying AOS approval despite discretionary concerns.

EB-2 (Including NIW) and EB-3 (Skilled / Other Workers)

Because EB-2 and EB-3 are typically employer-sponsored pathways, the memo places particular emphasis on whether the applicant could have completed the immigrant visa process through a U.S. consulate abroad instead of adjusting status inside the United States.

For applicants who have consistently maintained H-1B or L-1 status, the focus will likely be on demonstrating:

• Ongoing lawful employment

• Stable employer sponsorship

• Continuous compliance with immigration requirements

• Business disruption risks if the employee were forced to leave the U.S.

In these cases, employers may argue that continued U.S.-based adjustment is justified because the employee plays a critical operational role and departure could disrupt important business functions.

The analysis becomes more difficult for applicants who previously relied on:

• F-1 OPT

• B-2 visitor status

• Status transitions involving gaps or delayed filings

• Employer changes without timely amendments or updates

In those situations, USCIS may scrutinize why the applicant did not pursue consular processing and may expect significantly stronger equities than simply having “no negative record.” Officers could look for evidence such as:

• Serious medical dependency involving immediate family members in the U.S.

• Long-term property ownership or community ties

• Strong family-rooted circumstances beyond ordinary employment considerations.

EB-4 (Special Immigrants)

Certain EB-4 categories already contain humanitarian or protective elements built into the statutory framework. The memo’s reference to situations where “only adjustment of status can provide relief” may cover some special immigrant categories, including certain Special Immigrant Juvenile cases.

However, more traditional EB-4 categories — such as religious workers — may still face questions regarding why adjustment of status in the United States is preferable to consular processing abroad. Applicants may need to demonstrate that:

• Their continued physical presence in the U.S. is critical to ongoing religious duties;

• The religious organization or community substantially depends on them;

• Other unusual circumstances justify remaining in the U.S. during processing.

Any prior nonimmigrant status issues may still need to be affirmatively addressed.

EB-5 (Investor Immigration)

The memo’s broader principle — that adjustment of status should not automatically replace standard immigrant visa processing abroad — may also affect EB-5 investors who are otherwise eligible to complete immigrant visa processing overseas.

For EB-5 applicants, especially those using concurrent filing while visa numbers remain available, USCIS may increasingly focus on issues such as:

• Whether the investment project or job-creation activity genuinely requires the investor’s ongoing presence in the United States;

• Whether the applicant has compelling family, medical, or other reasons not to depart the U.S.;

• Whether there are sufficiently individualized reasons supporting adjustment of status rather than consular processing.

Practical Takeaways

One sentence from the memo is especially important: “The absence of adverse factors, by itself, does not demonstrate such unusual or outstanding equities.”

In other words, simply filing Form I-485 with basic eligibility documents may no longer be enough in more discretionary cases.

Applicants should strongly consider including a concise discretionary statement explaining:

• The continuity of their immigration history from initial entry through employment or investment activities;

• Why adjustment of status is more appropriate than consular processing;

• Family, operational, medical, or logistical factors supporting continued U.S. presence;

• Additional positive equities beyond basic compliance, such as long-term tax history, community involvement, or U.S. citizen dependents.

Overall, the memo does not necessarily close off adjustment-of-status pathways entirely. Instead, it signals a broader shift toward more clearly defined and more aggressively exercised discretionary review authority. Under this evolving framework, the overall integrity of the case, the applicant’s compliance history, and the strength of the equitable narrative may now play a far greater role in adjudications than before.

Applicants with different immigration backgrounds should reassess their strategy based on their own specific circumstances. For some categories, this may require significantly more preparation and supporting evidence before filing. For others, it may mean more carefully evaluating whether adjustment of status inside the United States remains the best option.

If you or your company have questions about immigration strategy, adjustment-of-status risks, or how the new memo may affect a specific case, please contact the ILS Immigration Team at immigrationlaw@consultils.com.

Disclaimer：This article is based on the latest policy information as of May 22, 2026. Given the rapid changes in immigration policies, it is advisable for enterprises to pay close attention to official updates and consult professional immigration lawyers for the latest guidance. Our firm will continue to track policy developments and provide clients with timely and accurate professional services.

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As Partner and Head of Immigration at ILS, Anna advises global employers on all aspects of U.S. business immigration. She helps companies recruit and retain executives and highly skilled professionals essential to their U.S. operations, with experience spanning industries from autonomous driving and biotech, to entertainment, logistics, and manufacturing.

Previously, Anna practiced at leading global law firms and served as in-house counsel and compliance manager in the telecommunications, finance, and gaming industries. This diverse background equips her with practical, cross-industry insights that inform strategic, business-focused immigration solutions.

Email: contact@consultils.com | Phone: 626-344-8949

Melody focuses her practice on U.S. immigration law, advising businesses, investors, and individuals on business immigration, family-based petitions, removal defense, and federal mandamus actions involving immigration delays. Licensed in Georgia, she provides practical counsel in complex immigration matters.

Her business immigration practice includes L-1A, L-1B, E-2, and EB-1C matters for executives, managers, specialized knowledge employees, and investors. She also represents individuals and families in adjustment of status, consular processing, family-based petitions, waivers of inadmissibility, VAWA and U visa matters, religious worker visas, and naturalization applications.

Email: contact@consultils.com | Phone: 626-344-8949