By Eddie Onyeka

Just when Nigerians thought things couldn’t get harder in America, the Trump administration has served another major blow. On May 21, 2026, the United States Department of Homeland Security (DHS) issued a Policy Memorandum that fundamentally changes how immigration officials are expected to treat Green Card (permanent residence) applications from foreigners already living in the U.S. This new policy comes on top of Presidential Proclamation 10998, which had already severely restricted the issuance of a wide range of U.S. visas to Nigerians.

What the New DHS Policy Memorandum actually says and what it does not.

It is critical to begin with what this policy is and what it is not.

This is not a new law. Section 245 of the Immigration and Nationality Act (INA), which authorises Adjustment of Status, the process by which a foreigner already in the U.S. can apply for a Green Card from within the United States remains fully in operation and is entirely unchanged. Congress has not repealed it. No Executive Order has suspended it.

What the DHS has issued is an internal Policy Memorandum an advisory to officials of the United States Citizenship and Immigration Services (USCIS) about how the law should be understood and applied. It does not create new law. It instructs officials on the approach they should take when exercising their existing discretionary powers. Nobody is forbidden from applying for Adjustment of Status within the United States.

Understanding the discretionary nature of adjustment of status.

This is, perhaps, the most important thing for any Nigerian in this situation to understand. A grant of Adjustment of Status under Section 245(a) of the INA is discretionary. This means it is not an automatic entitlement. The burden is on the applicant to demonstrate why discretion should be exercised in his or her favour.

In exercising that discretion, the USCIS official is required to consider all relevant factors both positive and negative. These include: Violation of immigration laws; violation of any conditions of non-immigrant status; fraud or misrepresentation in any immigration matter; moral character concerns; family ties in the United States and national interest considerations.

This balancing exercise is not new. It has always been the framework. What the Policy Memorandum does is sharpen and formalise the weight to be given to certain negative factors, particularly for applicants who were never expected to remain in the U.S. long-term. Crucially, the USCIS evaluates each applicant on a case-by-case basis. There is no automatic disqualification. Every case is assessed on its own facts.

The Congressional Expectation: Who was expected to leave?
The Policy Memorandum draws attention to an important statutory and Congressional expectation embedded in U.S. immigration law. Certain categories of migrants particularly those admitted into the United States as non-immigrants (e.g. on student, visitor, or work visas) and those paroled into the U.S., for example on humanitarian grounds were always expected, as a matter of law and policy, to leave the U.S. at the end of the purpose for which they were granted entry.

Under the new policy framework, remaining in the US beyond that purpose — even if the person is currently lawfully present is treated as a contravention of this expectation. It is a factor that will weigh against the applicant in the discretionary assessment.

What “Discretion and Administrative Grace” Means in Practice

The Policy Memorandum is explicit: while all those who are eligible for immigrant status can apply for Adjustment of Status, it must only be granted as “a matter of discretion and administrative grace.”

For applicants who are ordinarily expected to apply for permanent residency from outside the United States that is, those who entered as non-immigrants the bar is now formally higher. Such applicants must: Demonstrate “extraordinary” circumstances to justify why they should be allowed to adjust status from within the U.S. rather than from abroad; and offset any adverse immigration history by a “showing of unusual or even outstanding equities.”

This is a high bar. But it is not an impossible one. And it applies to discretion not eligibility.

The Finality of USCIS Decisions
A decision by the USCIS in an Adjustment of Status application is not reviewable and stands as a judgement. This underscores the importance of getting the application right before it is filed and why submitting a poorly prepared application can be fatal to your prospects.

Onyeka is a regulated immigration consultant and founding partner, Harvard Consults.