Last week's USCIS adjustment of status memo landed on a Friday afternoon before Memorial Day weekend. Cruel timing for a community that immediately needed answers. We've written the full breakdown of the policy memo, but knowing what a memo says and knowing what it means in practice are two different things. So we got an immigration attorney on the line.
This week I sat down with Zjantelle Cammisa Markel, Principal and Founder of Cammisa Markel, for a live Q&A on the new memo. She works with Australian E-3 holders on visa and green card matters every day. The conversation ran about 30 minutes. We covered what the memo actually does, who it's really aimed at, what it means for E-3 holders, what to do if you've already filed, and how to think about the alternative consular processing route. The full video is embedded below. This article captures the key points she made.
General advice disclaimer: The information below is for general information only and is not legal advice. It does not take into account your specific circumstances. For advice on your situation, talk to a US immigration attorney.
What the adjustment of status memo actually does
Zjantelle's opening point was the one that sets up everything else: this memo did not create a new law. The legal framework for adjustment of status (AOS) is unchanged. What the memo did was remind USCIS officers — the people who adjudicate AOS cases — that they have broad discretion in granting or denying applications.
In the memo's own language, adjustment of status is “a matter of discretion and administrative grace.” That phrase is doing a lot of work. It signals to officers that they should actively weigh whether an applicant is worthy of being granted AOS. They consider both positive and negative factors. The memo doesn't introduce new categories of disqualification. It instructs officers to use the discretion they already had more aggressively.
A useful detail Zjantelle flagged: if an officer denies an AOS case under this discretionary framework, the memo requires them to write a report listing the specific negative factors that outweigh any positive ones. That documentation requirement is a small but meaningful safeguard. Denials should be reasoned, not arbitrary.
Who the adjustment of status memo is really aimed at
This was the most clarifying point of the conversation, and one that should bring the temperature down for the average reader. Zjantelle is convinced this memo is not aimed at E-3 holders specifically, or at most clean-history applicants more broadly.
The memo's actual target, as she reads it, is the population that would already get denied AOS if their case made it to interview. The administrative logic is straightforward. It's much easier to deny someone re-entry at a consular interview abroad than to remove them from the US after they've entered. A borderline applicant who goes through AOS and gets denied at interview triggers removal proceedings, which are lengthy and costly. That same person, if required to consular process and denied abroad, simply doesn't come back.
The memo refers to people who “slip into the bushes” — colorful language for individuals who enter the country, fall out of status, and become hard to track or remove. The policy direction is to push that population to the consular pathway, where denial is operationally easier.
That doesn't mean clean-history E-3 holders are unaffected. But the memo is not designed to deny green cards to Australians working lawfully in the US who want to adjust status.
What the adjustment of status memo means for E-3 holders
The E-3 is a single-intent nonimmigrant visa, and the memo does flag single-intent visas as a potential negative factor. But Zjantelle pointed out a critical qualifier that's easy to miss. The memo says that entering on a single-intent visa “can be considered a negative factor.” That statement appears alongside a reference to violations of immigration law.
Her reading: the negative-factor flag applies to people who entered on a single-intent visa and also violated immigration law in some other way. If you came in on an E-3, worked for your sponsored employer, complied with the terms of your visa, and haven't violated immigration law in any other way, her instinct is that the single-intent factor alone should not torpedo an AOS application.
That said, the memo's “extraordinary circumstances” language is genuinely ambiguous. USCIS hasn't defined what makes circumstances extraordinary. That question will only be answered as actual cases work through the system in the coming months. Zjantelle's working assumption is that the law-abiding majority of E-3 holders should still be approvable for AOS. But the application now needs to make a stronger affirmative case for the applicant.
That stronger case is what she called a supplemental packet, and it's the practical change most E-3 holders need to focus on.
The factors USCIS officers are now weighing
The factors USCIS officers consider haven't changed, but the memo elevates the importance of weighing them visibly. Zjantelle walked through the negative factors first.
Officers will look at any criminal history or arrests. That includes matters as small as a fake ID used in college — Zjantelle shared a story of a client recently flagged for exactly that, despite being legally old enough to drink at the time in his home country. They will look at immigration violations of any kind: overstays, unlawful presence, working without authorization, failing to comply with the terms of a visa. They will look at how the applicant entered the country, particularly whether there was any fraud or misrepresentation. And they will look at whether the applicant has ever lied for an immigration benefit.
The positive factors that offset those concerns are equally important to understand. They're the raw material for the supplemental packet Zjantelle recommends. Officers can weigh in favor of the applicant: long lawful residence in the US, family ties to US citizens or permanent residents, hardship to US-based family if the applicant must leave, consistent visa compliance, steady tax history, and a clean record more generally. They can also weigh whether the applicant provides an economic benefit to the United States, creates jobs, contributes to industries of national interest, or otherwise contributes to the country in ways USCIS would want to encourage.
USCIS spokesman Zach Kahler made a statement in the memo's accompanying material that's worth reading closely. People who provide an economic benefit, or whose adjustment is otherwise in the national interest, should still expect to be approved. That's not a guarantee, but it's the closest thing to one the memo offers.
One non-negotiable came up repeatedly: tell your immigration attorney everything. Zjantelle uses a specific question with her clients — “Have you ever, ever, ever been arrested?” The magic three repetitions surfaces the one-time incident clients have forgotten or hoped wouldn't matter. Attorney-client privilege protects that disclosure. The only way an attorney can defend a case is to know everything that might come up at the interview.
Planning a green card application after the adjustment of status memo
For Australians who haven't yet filed and are planning a future green card path, the advice was concrete. Don't change your approach without an attorney conversation. Sit down with your immigration attorney and have a strategic discussion about whether AOS or consular processing is the right path for your situation.
Zjantelle pointed out something many E-3 holders don't realize. For a significant portion of her E-3 clients, consular processing was already the better choice before this memo. The reason is usually international travel: AOS includes a period where the applicant cannot travel abroad, and for many E-3 holders that's a deal-breaker regardless of any policy change. So if your attorney recommends consular processing now, it might not be because of the memo. It might be because it was always the right call.
If AOS is still the right path for your situation — children at certain ages, the need for the EAD that comes with AOS, or other case-specific factors — prepare a supplemental packet. Document the economic benefit you provide, your role in your employer's operations, any jobs you create or support, your contributions to the community, your family ties, and your clean immigration history. Make the affirmative case that you merit the favorable exercise of discretion the memo requires.
What to do if you've already filed for adjustment of status
For applicants whose I-485 is already pending, Zjantelle's message was straightforward: don't panic, and don't try to do anything before your interview.
Marriage-based AOS cases are routinely scheduled for interviews. For employment-based cases, the picture is less certain. Under the previous Trump administration, mandatory interviews returned for employment-based AOS applications. There are early signs the same may be happening now. Zjantelle mentioned a client recently scheduled for an employment-based AOS interview — unusual enough to suggest a pattern may be forming.
If you're a marriage-based applicant who's already filed, you can bring the supplemental documentation to your interview. You don't have to refile or scramble to submit additional materials in advance. The interview is where the discretionary determination happens. A well-prepared attorney can run you through a mock interview and review the documents you'll be taking with you.
A useful framing she offered: a green card interview has more than two possible outcomes. Approval on the spot. Denial. And a third — “recommended for approval pending administrative processing” — which can take two or three months but does result in approval. If your case ends up in administrative processing, that's not a denial. It's a process.
If the worst case happens and AOS is denied, the underlying petition (I-130 for marriage-based or I-140 for employment-based) may still be approved. You can then switch the case to consular processing rather than starting from scratch. The marriage-based process also includes a “Stokes interview” — a second interview specifically for cases where the officer needs more information — before any true denial. There's typically a chance to clarify or supplement before any final adverse decision.
Consular processing: what the alternative path actually looks like
Because consular processing may become the recommended path for more E-3 holders under this memo, it's worth understanding what it actually involves. The process is different from AOS in three meaningful ways.
First, the document requirements are different. Consular processing requires police certificates from every country you've lived in for more than six months after the age of sixteen. The FBI background check that's part of AOS doesn't apply. You need to assemble those records yourself.
Second, you have to travel to Australia for the interview. Zjantelle's advice is to attend whenever it's scheduled, even if the timing is inconvenient — rescheduling can significantly delay the case.
Third, and the media often gets this wrong: you do not have to leave the United States as soon as you file for consular processing. You can keep living and working in the US right up until your interview date. The critical requirement is that you maintain valid immigration status throughout. If your E-3 expires while consular processing is pending, you renew it. You cannot fall out of status, because doing so makes you inadmissible and the process collapses.
Once you attend your interview, the turnaround is roughly the same as for an E-3 visa application. A clean case can be approved in about a week. Cases with anything in the applicant's history — an arrest, a DUI, a name-check flag — can go into administrative processing for three or four weeks or longer.
Why H-1B may be a safer pathway under the new rules
A useful strategic option Zjantelle raised: for E-3 holders nervous about the new memo, moving to an H-1B before pursuing a green card may offer more certainty. H-1B is a dual-intent visa, and the memo explicitly says dual-intent visas should not be affected by the new discretionary framework. AOS from H-1B should remain a clear path.
There's a long-standing misconception that an E-3 holder must move to H-1B before applying for a green card. That has never been required. Direct E-3 to green card transitions are completely possible. But under this memo, the H-1B step may now offer a meaningful extra layer of protection for applicants who want maximum certainty.
This is exactly the kind of strategic question your immigration attorney is best positioned to answer. The right call depends on your job, your H-1B prospects, your timeline, and your tolerance for additional process steps.
Watch the full conversation
The full 30-minute Q&A with Zjantelle Cammisa Markel covers everything above plus several live questions from attendees. If you're working through this with your own immigration attorney, the video is the best source for her exact framing.
For the underlying policy detail, see our full breakdown of the new USCIS adjustment of status policy. For more on the E-3 visa specifically, see our complete 2026 E-3 visa guide and our previous Q&A on E-3 revocations.
A closing note from Zjantelle worth holding onto: call your immigration attorney, but also extend them a little patience. Attorneys working with E-3 and green card clients have been inundated since the memo dropped. The right answer for your case is worth the wait.
Adjustment of status memo FAQs
No. According to immigration attorney Zjantelle Cammisa Markel, the memo did not create a new law. The legal framework for adjustment of status under INA Section 245 is unchanged. The memo reminds USCIS officers that they have broad discretion in adjudicating AOS applications and instructs them to weigh positive and negative factors when making those decisions.
No, the memo is not specifically aimed at E-3 holders. The target population, as the memo describes it, is applicants who would likely be denied AOS anyway — typically people with criminal history, immigration violations, or other factors that already disqualify them. The administrative logic is that denying these applications at a consular interview abroad is easier than processing removals from inside the US.
Sit down with an immigration attorney for a strategic conversation. The right path — adjustment of status or consular processing — depends on your specific circumstances, including travel requirements, family situation, and timing. If AOS is still the right path, prepare a supplemental packet documenting the positive factors USCIS officers weigh: economic benefit, job creation, family ties, clean compliance history, and tax record.
Criminal history or arrests of any kind (including matters as minor as a fake ID), immigration violations such as overstays or unlawful presence, fraud or misrepresentation in entering the country, unauthorized employment, failure to comply with visa terms, and lying for an immigration benefit. The memo also flags entry on a single-intent visa as a potential negative factor, but typically in the context of an accompanying immigration violation.
Long lawful residence in the US, family ties to US citizens or green card holders, hardship to family if the applicant must leave, consistent visa compliance, steady tax history, clean record, economic benefit to the US, job creation, charitable contributions, and any other factor demonstrating the applicant is in the national interest. USCIS has signaled that applicants providing clear economic benefit should generally still be approved.
Don't panic and don't try to refile. For marriage-based cases, an interview is mandatory, and you can bring supplemental documentation showing your positive factors to that interview. For employment-based cases, mandatory interviews may be returning under this administration, so prepare similar documentation in case you're called in. Work with your immigration attorney on a mock interview and document review before any scheduled interview.
No. You can continue to live and work in the US right up until your scheduled interview date, provided you maintain valid immigration status throughout. If your E-3 expires while your application is pending, you can renew it. You cannot fall out of status, because doing so makes you inadmissible and ends the process.
It's not required, but it may now be a strategic choice for E-3 holders who want more certainty. H-1B is a dual-intent visa, which the new memo explicitly says should not be affected by the new discretionary framework. Direct E-3 to green card paths are still possible, but moving to H-1B first may add a layer of protection for nervous applicants. Discuss this option with your immigration attorney.
For a clean case, approval can come as quickly as a week. Cases with any flags — prior arrests, DUI, name-check matches — can go into administrative processing for three or four weeks or longer. This is similar to the timeline for E-3 visa applications, so anyone familiar with that process has a reasonable benchmark.
Denial of AOS does not necessarily mean denial of the underlying green card petition. For marriage-based cases, the I-130 (the spouse's petition) may still be approved, and the case can be switched to consular processing. For employment-based cases, the I-140 may similarly remain approved. There is also a third possible outcome short of denial: “recommended for approval pending administrative processing,” which can take two or three months but ultimately results in approval.
This article reflects a webinar recorded on May 26, 2026. Immigration policy continues to evolve. For the most current information, consult the USCIS website and a qualified US immigration attorney.
