H-1B I-485 2026: Should You Still File Adjustment of Status Under the New USCIS Memo?

By Richard Herman, Immigration Attorney with More Than 30 Years of Experience

H-1B professionals across the United States are asking the same urgent question right now: “Is it still safe to file adjustment of status?”

That fear exploded after the Trump administration released a new USCIS policy memorandum emphasizing that adjustment of status is discretionary, approval is not automatic, and many applicants may instead be expected to pursue consular processing abroad.

The memo has caused widespread anxiety among H-1B workers, physicians, engineers, tech professionals, researchers, F-1 students transitioning to H-1B, and employment-based green card applicants with pending Form I-485 applications. Many fear increased denials, RFEs, NOIDs, delays, or being pressured to leave the United States for consular processing.

For H-1B workers already facing layoffs, long green card backlogs, visa uncertainty, and retrogression, the new USCIS memo may represent one of the most significant immigration policy shifts in years.

This article explains whether H-1B workers should still file I-485, who may be most at risk, why adjustment of status may still be safer, what the new memo means, and what employment-based immigrants should do now.

Richard Herman Discusses the New USCIS I-485 Memo on NPR

This week, immigration attorney Richard Herman appeared on NPR-affiliated programming discussing the administration’s new adjustment-of-status policies and the growing risks facing employment-based immigrants.

Listen here:

• Ideastream Public Media / NPR – Trump Administration Changes Rules to Obtain Green Cards
• NPR Illinois – Trump Administration Changes Rules to Obtain Green Cards
• KRWG / NPR Politics – Trump Administration Changes Rules to Obtain Green Cards

In the interviews, Richard Herman discussed the new USCIS adjustment-of-status memo, risks to H-1B professionals, discretionary denials, pressure toward consular processing, and the uncertainty now facing employment-based immigrants.

Herman explained that many H-1B workers are now requesting detailed “immigration risk assessments” before filing Form I-485, changing employers, traveling internationally, or making long-term career decisions. The NPR interviews also explored growing fears among international students, skilled workers, physicians, and technology professionals who worry the administration’s new policies may disrupt decades of established adjustment-of-status practice.

What Is the New USCIS I-485 Memo?

On May 21, 2026, USCIS issued USCIS Policy Memorandum PM-602-0199 – Adjustment of Status and Discretion.

The memo emphasizes that adjustment of status is discretionary. It repeatedly states that adjustment of status is an “extraordinary act of grace.” This language has alarmed immigration lawyers nationwide because it signals more aggressive scrutiny, increased discretionary denials, and potentially greater pressure toward consular processing abroad.

Official USCIS discretionary guidance is available in the USCIS Policy Manual – Adjustment of Status Discretion.

Recent national reporting suggests the administration may increasingly favor consular processing over adjustment of status for many applicants.

Why H-1B Holders Are Especially Nervous

H-1B workers already face extraordinary immigration uncertainty because of retrogression, PERM delays, layoffs, wage scrutiny, RFEs, and long employment-based green card backlogs.

Now many fear USCIS officers may more aggressively scrutinize maintenance of status, prior employment history, wage levels, job changes, benching, unauthorized employment, or technical status violations.

Many employment-based immigrants now worry: “Could USCIS deny my I-485 even if I qualify?” Unfortunately, yes. That is now one of the central concerns surrounding the memo.

What Is Adjustment of Status?

Adjustment of status allows eligible immigrants already inside the United States to apply for permanent residency without leaving the country. Official USCIS guidance is available on USCIS Form I-485 and the Adjustment of Status Overview.

For many H-1B workers, adjustment of status has historically been the safest option because it may avoid unlawful presence triggers, reduce family separation, permit work authorization, allow Advance Parole travel, and avoid risky consular interviews abroad.

Could USCIS Push H-1B Workers Toward Consular Processing?

Potentially, yes. USCIS cannot literally force someone to leave the United States. However, USCIS can deny adjustment, refuse discretionary approval, or make consular processing the only remaining option. That is why many immigration lawyers are deeply concerned about the administration’s new policy direction.

Why Consular Processing May Be Dangerous for H-1B Workers

For some immigrants, leaving the United States can trigger unlawful presence bars, administrative processing, visa denials, lengthy delays, or inability to return. Official USCIS unlawful presence guidance is available at USCIS Unlawful Presence and Bars to Admissibility.

Potential issues may include prior status gaps, unauthorized employment, old visa violations, or inconsistencies in immigration history. Some applicants may also face security checks, social media vetting, or enhanced screening abroad. Related: USCIS Vetting Center High-Risk Countries and Social Media Screening

Which H-1B Holders May Be Most at Risk?

Potentially higher-risk categories may include workers with layoffs or employment gaps, prior status violations, unauthorized employment, inconsistent filings, multiple employers, benching issues, or prior denials. USCIS officers may now scrutinize these issues much more aggressively.

Are Employment-Based Applicants Still Safer Than Family-Based Applicants?

Possibly. Some recent DHS statements suggest that immigrants who provide economic benefit, national interest value, or high-skilled labor may still receive favorable discretionary treatment. This could potentially help physicians, engineers, researchers, AI professionals, and highly compensated H-1B workers.

However, the standards remain extremely unclear. That uncertainty itself is now driving fear throughout the H-1B community.

Should H-1B Holders Still File I-485?

For many immigrants: yes. Adjustment of status may still be safer than consular processing. However, strategy matters more than ever.

Before filing, H-1B workers should carefully evaluate maintenance of status, prior immigration history, unlawful presence concerns, travel risks, and long-term immigration strategy. There is no one-size-fits-all answer.

What Evidence Should H-1B Workers Prepare Right Now?

This is critical. Employment-based applicants should organize pay records, tax returns, LCAs, I-797 approvals, employment verification letters, W-2s, immigration filings, and evidence of lawful maintenance of status.

Applicants should also strengthen positive equities, community ties, humanitarian evidence, and hardship documentation.

Richard Herman’s Predictions for H-1B Green Card Cases

Based on more than 30 years practicing immigration law, I expect increased RFEs, broader discretionary review, more NOIDs, more scrutiny of employment history, and increased pressure toward consular processing.

I also expect growing federal litigation, inconsistent USCIS adjudications, and expanded social media and security vetting. These issues are already generating widespread concern among immigration lawyers, employers, universities, and multinational companies.

What Should H-1B Workers Do Right Now?

H-1B workers should begin by carefully reviewing their immigration history for status gaps, benching, unauthorized employment, or inconsistencies. It is also essential to preserve all documentation, including pay records, approval notices, tax returns, and immigration filings.

Avoid international travel without first obtaining legal advice. Travel risks may now be increasing. Strategic timing may become increasingly important under the new policy environment. Finally, speak with an experienced immigration attorney. The new memo creates enormous uncertainty, and legal strategy matters more than ever.

Frequently Asked Questions (FAQ)

Should H-1B holders avoid filing I-485? Not necessarily. For many immigrants, adjustment of status may still be safer than consular processing.

Can USCIS deny an I-485 even if the applicant qualifies? Yes. Adjustment of status is discretionary.

Are H-1B workers now at greater risk? Potentially yes, especially where there are status violations, layoffs, or documentation issues.

Could USCIS force H-1B workers into consular processing? Not directly, but denial of adjustment may effectively leave consular processing as the only remaining pathway.

Are highly skilled workers safer? Possibly. DHS statements suggest applicants providing economic benefit or national interest value may receive more favorable treatment.

Should H-1B workers travel internationally right now? That depends on the individual case. Many applicants should seek legal advice before international travel.

Final Thoughts

The new USCIS adjustment-of-status memo has fundamentally changed the conversation surrounding employment-based immigration. For many H-1B workers, the question is no longer simply “When will my priority date become current?” It is now “Will USCIS still allow me to adjust status inside the United States?”

That uncertainty is reshaping immigration strategy nationwide. At the same time, panic is not the answer. Many H-1B workers may still qualify successfully for adjustment of status. But preparation, documentation, and strategic planning now matter more than ever.

If you are an H-1B worker concerned about how the new USCIS memo may affect your green card plans, schedule a confidential consultation with Herman Legal Group today.