On October 5, 2026, several labor unions, university faculty groups, a Miami-based legal aid organization, and six individual green card applicants filed suit against the Department of Homeland Security in federal court in Boston. The case, American Association of University Professors v. Mullin, No. 1:26-cv-14527 (D. Mass.), challenges two USCIS policy memos issued this year that have significantly increased the risks associated with adjusting status within the United States.
If you have a pending I-485 or plan to file one, monitor this case closely. While it does not affect your application now, the court’s decision may affect whether USCIS can continue requiring applicants to justify adjustment of status. There are two memos at the heart of the case.
Memo #1: PM-602-0199 May 21st 2026
The memo states that adjustment of status should be viewed as extraordinary relief and granted through administrative grace. Meaning, if you are a nonimmigrant or parolee who decides to remain in the US and file an I-485 instead of using a consulate, they will consider that against you. You will have to show what the memo states as “unusual or even outstanding equities.” Having a clean history will not be enough.
Some visa categories allow dual intent, such as H1B, L1, and others, where you can process through adjustment of status to receive your green card. Unfortunately, just having a dual-intent visa category will not be enough.
Memo #2: PA-2026-05 August 5th 2026
This memo replaces the previous guidance from 2021, which instructed officers to send out RFEs/NOIDs if there was more information that could help prove you qualify for adjustment of status. They can now deny your case if there isn’t enough information in your case or records to show you qualify. This went into effect immediately and applies to current pending cases.
These memos will affect many people who filed their I-485 previously. In 2025, if you filed an I-485, you didn’t have to prove why you should stay in the US while your application was pending. It wasn’t viewed as something negative against you. Now, with the new August memo, officers don’t have to notify you that they are going to deny your case.
Who brought the suit?
Plaintiffs consist of the American Association of University Professors, along with its Harvard Chapter and Boston University Chapter. SEIU 32BJ and Local 509, Americans for Immigrant Justice, and 6 individuals. They are represented by Democracy Forward, American Immigration Council, AILA, and Colombo & Hurd (FL).
Individual cases illustrate the immediate impact of the May memo. For example, DACA recipient and spouse of a U.S. citizen, Areli Rojas Correa, was interviewed six days after the memo’s release. The officer questioned why she was not pursuing consular processing. Her husband’s I-130 was approved the following day, but her I-485 remains pending.
Maria Guardado’s case progressed further. Maria Guardado has been in the US since 1998 and has had TPS since 2001. On the 2nd of September USCIS determined that she met statutory requirements for TPS but denied her request on discretionary grounds. They said this due to her immigration history and one instance of shoplifting that was dropped in 2001. Which was never mentioned during her interview. If she did not leave within 33 days USCIS may send her a Notice to Appear.
Some plaintiffs are familiar to employment-based clients. One is an F-1 Nigerian national working at Comcast on CPT, with an I-485 pending since April. If required to process overseas, the travel ban affecting Nigeria could prevent his return. The union members include medical residents with approved EB-2 National Interest Waiver petitions and a Harvard professor on an H-1B with an I-140 approved in September. Both are concerned about whether leaving the country is now expected.
What the Complaint Argues
The complaint lists 6 counts, most of which pertain to how Congress intended the statute to be applied. In 1952 congress created the ability to adjust your status to lawful permanent resident through what is now known as INA § 245 (8 U.S.C. § 1255). This allowed those who were here on temporary status to gain permanent residence without having to leave and come back. The complaint goes into detail about how Congress has amended INA section 245 around 25 times. From allowing preexamination in the 1930’s at canadian consulates to striking preconceived intent in 1960. None of these bars and exceptions punish someone for wanting to adjust.
The remaining counts argue that the memos are arbitrary and capricious under the Administrative Procedure Act. They should have gone through notice and comment rule making. Plaintiffs also argue that the memos contradict BIA decisions, which USCIS must follow. Matter of Arai states that you should adjust if there are no negatives. Matter of Mendez-Moralez held that you can use the “unusual or outstanding equities” if there are significant negative factors, such as criminal history. The May Memo uses this standard across the board. Two additional counts challenge the retroactive application of the memos, one under the APA and one under the Due Process Clause of the Fifth Amendment.
Plaintiffs are asking the court to vacate both policies and permanently enjoin them from taking effect. Also to provide temporary relief while the case is pending. There has been no decision as of October 6th, 2026.
If Your Green Card Case is Still Pending
Be prepared to answer questions about why you should not be sent through consular processing. Make sure to have your answer and documents ready.
These memos remain in effect, and officers continue to follow them. Just because lawsuits are filed does not mean the policy is no longer in place. You need to abide by what is currently being enforced.
Our Advice to Clients
If you filed prior to May 21, please be prepared to amend your application. Most applications that were filed around that time did not include information on why you deserve favorable exercise of discretion. Show that you have family here, work history, taxes, involvement in your community, and anything that can show why you should not be processed at a consulate.
Be prepared to answer questions about why you should not be sent through consular processing. Make sure to have your answer and documents ready.
Determine where you would be required to process your application. Immigrant visas are generally unavailable to nationals of the 39 travel ban countries unless a waiver is granted. In CLINIC v. Rubio, the State Department’s pause on 75 countries was vacated in August, but the complaint notes that processing has resumed slowly. If consular processing is not an option for you, document this in your case.
Let your attorney know if you’re planning a trip. The BIA issued a recent decision in August 2019, Matter of Delcarmen-Lara, that affects how travel on advance parole is treated for individuals with accrued unlawful presence. One of the professors listed in the complaint has left the country and has not returned yet.
If your application is denied, make sure to act quickly. A denial can terminate I-485-related work authorization and advance parole. There are short time limits to file motions to reopen or reconsider.
How ILBSG Can Assist
We will keep you informed of what happens with this case. If you currently have an adjustment application pending or would like to file one our attorneys can help you review your file and begin collecting documents that you will need based on these memos. Contact us to get started. This is for informational purposes only and should not be construed as legal advice for your case.