Beltway Buzz, May 29, 2026

USCIS: ‘Adjustment of Status is a Matter of Discretion.’ U.S. Citizenship and Immigration Services (USCIS) has issued a policy memorandum that has significant implications for foreign nationals who apply for lawful permanent residency while living in the United States. The memo clarifies that this process, referred to as “adjustment of status,” is “an extraordinary matter of discretion and administrative grace not designed to supersede the regular consular processing of immigrant visas.” While adjustment of status remains a viable pathway to lawful permanent residency, the memo instructs USCIS officials to “consider all relevant factors and information in the totality of the circumstances” when determining whether to approve an adjustment of status application for an applicant already living in the United States or require the applicant to apply for permanent residence via consular processing abroad. Nancy Shalhub, Edward J. Castillo, and Ryan A. Mosser have the details.

DOL’s Immigration Prevailing Wage Proposal Moves Forward. On May 26, 2026, the public comment docket closed on the U.S. Department of Labor’s (DOL) proposed rule, “Improving Wage Protections for the Temporary and Permanent Employment of Certain Foreign Nationals in the United States.” If finalized, the proposal would increase the prevailing wage levels employers must pay to employment-based immigrant and nonimmigrant visa holders. The U.S. Chamber of Commerce filed comments criticizing the proposal, writing, “By imposing steep increases that do not reflect market wages and doing so without a phased approach, the rule creates substantial operational and financial planning challenges, particularly in recalibrating compensation structures, budget forecasts, and long-term workforce strategy.” The DOL will now review the comments and potentially make changes to the proposal—a process that could take several months—before issuing a final rule.

OPT Bill Introduced in the House. Representative Glenn Grothman (R-WI) has introduced the “OPT Fair Tax Act,” a bill that would eliminate the current Federal Insurance Contributions Act (FICA) payroll tax exemption applicable to foreign national students working in the United States pursuant to the Optional Practical Training (OPT) program. Senator Tom Cotton (R-AR) introduced a similar bill (S. 2940) in September 2025. Relatedly, the Buzz is tracking a pending U.S. Department of Homeland Security/U.S. Immigration and Customs Enforcement regulatory proposal that could limit or end the OPT program.

Railway Safety Bill on Track in the House. Late last week, the Railway Safety Act was included as an amendment to the “Building Unrivaled Infrastructure and Long-term Development (BUILD) for America’s 250th Act” (“BUILD America 250 Act”) (H.R. 8870), which passed the House Committee on Transportation and Infrastructure on May 22, 2026, by a vote of 62-to-2. The bill, which responds to the 2023 freight train derailment in East Palestine, Ohio, would institute various safety measures and increase civil penalties for freight rail carriers. (Opponents of the amendment argue that the bill belies freight rail’s safety record and that the bill’s two-person crew requirement is outdated due to modern technology.) In March 2023, then-U.S. Senator J.D. Vance of Ohio (now Vice President J.D. Vance) cosponsored a version of the bill in the 118th Congress. Adoption of the amendment by the committee is still just a first step, as the BUILD America 250 Act still needs approval from both the House and Senate.

DOL 2025 Civil Penalty Amounts Remain Unchanged. The DOL announced this week that it would not make inflationary adjustments to civil penalties under the federal statutes it administers. The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 requires federal agencies to make annual inflationary adjustments to their civil monetary penalties. Pursuant to the Act, that calculation is based on Bureau of Labor Statistics data pulled from October of the previous year. However, due to the federal government shutdown from October to November 2025 that BLS data is unavailable, and the statute does not allow for alternative calculations. Consequently, 2025 civil penalty amounts will remain in place.

Ex Parte Merryman. This week in 1861, the United States Circuit Court for the District of Maryland issued its decision in Ex parte Merryman, a seminal case regarding the Constitution’s separation of powers doctrine. Merryman involves the president’s ability to suspend habeas corpus, a historic legal procedure that compels the government to either charge or release a detained individual. The decision was issued by Chief Justice Roger B. Taney (author of the infamous 1857 Dred Scott opinion), who, in addition to his duties on the Supreme Court of the United States, was also assigned cases in the circuit.

Article 1, Section 9, of the Constitution states that “the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” At the beginning of the Civil War, President Abraham Lincoln suspended habeas corpus as a tool to protect Washington, D.C., from the rebellion. Maryland farmer John Merryman was subsequently arrested for his role in destroying a railroad bridge that was being used by Union troops, and he was imprisoned at Fort McHenry in Baltimore. Merryman’s attorney filed for a writ of habeas corpus, which was granted by Taney, who wrote that the constitutional provision allowing for suspension of habeas corpus “is devoted to the Legislative Department of the United States, and has not the slightest reference to the Executive Department.” As a result, Congress passed the Habeas Corpus Suspension Act in 1863, which, as its name implies, granted Lincoln the authority to suspend habeas corpus during the Civil War.