By Richard Herman, Immigration Attorney with More Than 30 Years of Experience
For years, many immigrants believed that if they qualified for a green card through adjustment of status, approval was likely.
That assumption may no longer be safe.
A new USCIS policy memorandum issued in May 2026 has dramatically changed the conversation surrounding Form I-485 adjustment of status applications.
The memo repeatedly emphasizes:
adjustment of status is discretionary.
That means:
USCIS can deny an I-485 application even if the applicant technically qualifies.
Now immigrants across the United States are asking:
- What happens if USCIS denies my I-485?
- Will I lose my work permit?
- Could I be placed into removal proceedings?
- Will I accrue unlawful presence?
- Could USCIS force me into consular processing?
- Can ICE arrest me after denial?
- Do I have appeal rights?
- What should I do right now to protect myself?
These fears are understandable.
Because under the administration’s new memo, immigration lawyers nationwide expect:
- more RFEs,
- more NOIDs,
- broader discretionary review,
- and increased adjustment-of-status denials.
This article explains:
- what happens after an I-485 denial,
- the immigration consequences,
- who may be most at risk,
- what options may still exist,
- and what immigrants should do immediately.
Richard Herman Discusses the New USCIS Memo on NPR This Week
This week, immigration attorney Richard Herman appeared on multiple NPR-affiliated programs discussing the administration’s new adjustment-of-status policies and the growing fear surrounding I-485 denials.
Listen here:
- Ideastream Public Media / NPR – Trump Administration Changes Rules to Obtain Green Cards
- NPR Illinois – Trump Administration Changes Rules to Obtain Green Cards
- Texas Public Radio / NPR – Trump Administration Changes Rules to Obtain Green Cards
During the interviews, Richard Herman explained that immigrants are increasingly requesting:
“immigration risk assessments”
before:
- filing I-485 applications,
- changing employers,
- traveling internationally,
- or deciding whether to remain in the United States.
The interviews discussed growing fears regarding:
- discretionary denials,
- consular processing pressure,
- social media vetting,
- and increased scrutiny of immigration histories.
Richard Herman also recently discussed similar immigration fears affecting international students and visa holders in another NPR-affiliated interview:
These concerns are now reshaping immigration strategy nationwide. (nprillinois.org)
What Is the New USCIS I-485 Memo?
On May 21, 2026, USCIS issued:
The memo repeatedly states:
adjustment of status is a discretionary benefit.
USCIS emphasizes that:
adjustment is an “extraordinary act of grace.”
The memo also strongly suggests:
- eligibility alone may not be enough,
- officers should conduct broader discretionary review,
- and consular processing is the “ordinary” immigration pathway. (uscis.gov)
Official USCIS guidance:
Related Herman Legal Group analysis:
- Top 10 I-485 Denial Risks in 2026
- What Counts as Extraordinary Circumstances?
- Can USCIS Force You to Leave the U.S. for Consular Processing?
- Should H-1B Holders Avoid Filing I-485 Right Now?
What Happens Immediately After an I-485 Denial?
The answer depends heavily on:
- your immigration status,
- whether you still hold a valid nonimmigrant visa,
- your unlawful presence history,
- and whether USCIS refers the case to immigration court.
Potential consequences may include:
- loss of employment authorization,
- loss of Advance Parole,
- accrual of unlawful presence,
- Notices to Appear (NTAs),
- ICE referral,
- or pressure toward consular processing.
Could You Lose Your Work Permit?
Potentially yes.
If your:
- Form I-765 Employment Authorization Document (EAD)
was based solely on the pending I-485 application, denial of adjustment may eventually terminate employment authorization.
This can create devastating consequences for:
- H-1B workers,
- spouses,
- students,
- and employment-based immigrants relying on adjustment-based EADs.
Official USCIS guidance:
Could You Start Accruing Unlawful Presence?
Yes.
This is one of the most dangerous consequences.
If adjustment is denied and the applicant has no valid underlying status, unlawful presence may begin accruing immediately or shortly thereafter.
This can eventually trigger:
- 3-year bars,
- 10-year bars,
- or inadmissibility problems if the person later departs the United States.
Official USCIS guidance:
Related:
Could USCIS Place You Into Removal Proceedings?
Potentially yes.
USCIS may issue:
a Notice to Appear (NTA)
which initiates immigration court proceedings.
This risk may be higher for immigrants with:
- unlawful presence,
- criminal history,
- fraud concerns,
- prior removal orders,
- or no underlying lawful status.
Official DHS NTA guidance:
Could ICE Become Involved?
Potentially yes.
Many immigrants now fear:
- ICE referrals,
- detention risks,
- or enforcement activity following denial.
The administration’s increasingly aggressive immigration posture has intensified these concerns nationwide.
Recent NPR interviews featuring Richard Herman discussed growing immigrant fear regarding:
- discretionary denials,
- immigration “risk assessments,”
- and expanded immigration scrutiny.
Could USCIS Force You Into Consular Processing?
Not directly.
However:
denial of adjustment may effectively leave consular processing as the only remaining option.
For many immigrants, this may be legally dangerous.
Leaving the United States could trigger:
- unlawful presence bars,
- visa denials,
- administrative processing,
- or prolonged family separation.
Related:
Do You Have Appeal Rights After an I-485 Denial?
Usually:
there is no direct administrative appeal of an I-485 denial.
However, some immigrants may still have options including:
- motions to reopen,
- motions to reconsider,
- refiling,
- immigration court renewal,
- federal litigation,
- or waivers.
Related:
Official USCIS guidance:
Which Immigrants May Be Most at Risk After Denial?
Potentially higher-risk categories may include:
- undocumented immigrants,
- applicants with unlawful presence,
- visa overstays,
- F-1 students with status problems,
- H-1B workers with layoffs,
- applicants with criminal arrests,
- or immigrants accused of fraud or misrepresentation.
Related:
What Should Immigrants Do Immediately If They Fear Denial?
1. Review Immigration Status Carefully
Determine whether you still maintain:
- H-1B,
- L-1,
- F-1,
- or another underlying status.
2. Preserve Documentation
Save:
- I-94 records,
- approval notices,
- pay records,
- immigration filings,
- and hardship evidence.
3. Avoid International Travel Without Legal Advice
Travel risks may now be increasing substantially.
4. Strengthen Positive Equities
Prepare evidence showing:
- family unity,
- humanitarian hardship,
- community contribution,
- and good moral character.
5. Consult an Experienced Immigration Attorney Immediately
Timing may become critical after denial.
Richard Herman’s Predictions About I-485 Denials in 2026
Based on more than 30 years practicing immigration law, I expect:
- increased RFEs,
- more NOIDs,
- broader discretionary review,
- greater pressure toward consular processing,
- and increased federal litigation challenging arbitrary denials.
I also expect:
- more immigrants seeking “risk assessments,”
- increased fear among H-1B workers,
- and growing anxiety among employment-based immigrants and international students.
Frequently Asked Questions (FAQ)
What happens if USCIS denies my adjustment of status?
Potential consequences may include:
- loss of work authorization,
- unlawful presence,
- immigration court proceedings,
- or pressure toward consular processing.
Can USCIS deny my I-485 even if I qualify?
Yes. Adjustment of status is discretionary.
Will I lose my work permit if my I-485 is denied?
Potentially yes, especially if the EAD was based solely on the pending I-485.
Could I be deported after an I-485 denial?
Potentially yes, especially if USCIS issues an NTA placing you into removal proceedings.
Can I appeal an I-485 denial?
Usually there is no direct appeal, but motions, refiling, immigration court renewal, or federal litigation may still be possible.
Should I leave the United States after denial?
Never make that decision without legal advice. Departure could trigger unlawful presence bars or other inadmissibility issues.
Final Thoughts
The new USCIS adjustment-of-status memo has fundamentally changed how immigrants think about green card applications.
For many applicants, the fear is no longer simply:
“Will my case be delayed?”
It is now:
“What happens if my adjustment case is denied?”
Under the administration’s new policy framework:
- discretionary scrutiny is increasing,
- immigration histories are being reviewed more aggressively,
- and preparation now matters more than ever.
For immigrants with pending I-485 applications:
strategic planning may be critical to avoiding catastrophic consequences.
Schedule a Consultation
If you are concerned about:
- I-485 denial risks,
- RFEs,
- NOIDs,
- unlawful presence,
- removal proceedings,
- consular processing,
- H-1B adjustment strategy,
- or immigration discretion,
schedule a confidential consultation with Herman Legal Group:
Herman Legal Group
Immigration Law Throughout the United States
Phone: 1-800-808-4013
