Green Cards · Adjustment of Status · PM-602-0199
The USCIS Adjustment of Status Memo: What Actually Changed — and What Didn't
On May 21, 2026, USCIS issued Policy Memorandum PM-602-0199, titled "Adjustment of Status is a Matter of Discretion and Administrative Grace, and an Extraordinary Relief that Permits Applicants to Dispense with the Ordinary Consular Visa Process." The agency's press release declared that USCIS "will grant Adjustment of Status only in extraordinary circumstances." That framing set off a wave of alarm — and a wave of overreaction.
The memo does not change the law. It does not change eligibility. It does not close the door on adjustment of status for most applicants currently in the United States. But it does change something real: how USCIS officers are expected to think about and document their decisions on every I-485 filed from inside the United States. This guide separates what the memo actually says from what the press release implied — and explains what each applicant group needs to do differently starting now.
What the Memo Actually Says
Adjustment of status under INA §245(a) has always been discretionary. Congress designed it as an alternative to the standard immigrant visa process, which requires the applicant to leave the United States and apply for their visa at a U.S. consulate or embassy abroad. The memo does not create this discretionary authority — it reframes how officers are expected to use the authority that has always existed.
The operative instruction in PM-602-0199 is this: where consular processing is available to an applicant based on the immigrant category under which they seek to adjust, officers must consider — as part of the discretionary analysis — the longstanding understanding that adjustment is an extraordinary form of relief from the ordinary consular visa process, not an automatic entitlement. Officers are directed to conduct a totality-of-circumstances analysis weighing positive equities against negative factors, and to treat the choice to remain in the U.S. to adjust rather than departing for consular processing as one factor among many in that analysis.
Critically, the memo requires that any denial on discretionary grounds include a written explanation documenting the specific positive and negative factors considered and why the negative factors outweigh the positive. That requirement creates a reviewable record — which means a wrongful denial based on this memo can be challenged.
PM-602-0199 does not change or limit eligibility for adjustment of status. It does not create new statutory bars. It does not apply to refugees, asylees, SIJS holders, U visa holders, or T visa holders — those populations adjust under different INA sections and are explicitly outside the memo's scope. It also does not eliminate the protections that apply to immediate relatives of U.S. citizens, whose statutory exemptions from certain status violations remain fully intact.
The Press Release vs. the Memo
The most important thing to understand about PM-602-0199 is the gap between the USCIS press release and the actual memo. The press release declared that USCIS "will grant Adjustment of Status only in extraordinary circumstances." That phrase — "only in extraordinary circumstances" — does not appear anywhere in the body of the memo. It appeared in a political statement issued by an agency official, not in the policy guidance that will actually govern adjudications.
What the memo actually requires, where an applicant has adverse factors in their record, is that the applicant demonstrate "unusual or even outstanding equities" to overcome those adverse factors — language drawn from Matter of Blas, 15 I&N Dec. 626 (BIA 1974), a Board of Immigration Appeals precedent decision. That is a higher bar than the casual pre-memo environment in some offices, but it is not the same as requiring extraordinary circumstances for every single case.
Multiple immigration law organizations — including the American Immigration Lawyers Association (AILA) — have flagged the disconnect between the political framing and the operative text, noting that it will be very difficult to provide generalized legal advice because PM-602-0199 is, at its core, a case-by-case framework rather than a categorical rule. Legal challenges to the memo are anticipated, and courts will ultimately determine how far the agency's new posture extends.
The Positive and Negative Factors
The memo explicitly instructs officers to weigh the following categories of positive and negative factors in every I-485 discretionary analysis. Having no negative factors is not sufficient — the memo makes clear that applicants must affirmatively demonstrate positive equities, not merely the absence of adverse history.
Negative Factors — Work Against You
- Violations of U.S. immigration law or the conditions of a prior visa status
- Fraud or misrepresentation made to USCIS or any government agency
- Conduct inconsistent with the purpose of the visa or status under which you entered
- Remaining in the United States after your authorized period of stay expired
- Evidence that you entered the U.S. with a pre-existing intent to apply for a green card rather than honoring the purpose of your visa
- Having applied for adjustment when consular processing was available to you — this is now explicitly listed as a factor officers must consider
- Unauthorized work during a prior or current period of stay
Positive Factors — Work in Your Favor
- Strong family ties to the United States, especially a U.S. citizen or LPR spouse or child — particularly where separation would cause significant hardship
- Long history of lawful presence and community integration: consistent employment, tax filings, civic involvement, community letters
- Good moral character: clean criminal record, charitable work, professional accomplishments
- Demonstrated benefit to the United States: specialized skills, employer sponsorship letters, economic contributions
- Evidence that consular processing is unavailable or would cause disproportionate hardship
- Dual-intent nonimmigrant status (H-1B, L-1, O-1, E-3) — though note the memo clarifies this is a positive factor, not a free pass
Prior to this memo, many H-1B and L-1 holders treated their dual-intent status as a near-automatic green light for adjustment of status. PM-602-0199 explicitly addresses this in Footnote 20: maintaining lawful status in a dual-intent nonimmigrant category is not sufficient, on its own, to warrant a favorable exercise of discretion. Officers are still required to conduct the full totality-of-circumstances analysis. H-1B and L-1 applicants with otherwise clean records remain in a good position, but the assumption of automatic approval is no longer warranted.
Who Is Most and Least Affected
The practical impact of PM-602-0199 is not uniform across all applicants. Based on the memo's text and early adjudication trends reported by practitioners, applicants fall into three broad risk tiers.
Spouses, parents, and unmarried children under 21 of U.S. citizens with no status violations, no unauthorized work, no criminal history, and legal entry remain in the strongest position. Statutory exemptions for immediate relatives are unchanged. Expect more thorough RFEs and interview questions — not denial.
Dual-intent status helps but is no longer a discretionary shield on its own. Applicants with long-term compliant histories and clean records are well-positioned but should expect more detailed RFEs, longer adjudication timelines, and deeper interview scrutiny. Prepare a comprehensive discretionary package.
Unlawful presence, prior overstays, unauthorized work, or entry on a visa the applicant never intended to honor are now explicitly listed adverse factors. These applicants face the most meaningful change under the memo and require individual legal assessment — especially before any travel decision.
If You Have a Pending I-485
The memo applies to adjudications going forward — including I-485 applications already pending at the time PM-602-0199 was issued. If you have a pending adjustment case, here is what to do right now:
- Do not withdraw your application There is no reason to withdraw a pending I-485 based on this memo alone. Withdrawal does not protect you — it simply removes your case without any benefit.
- Do not travel internationally without attorney advice Travel while an I-485 is pending carries risks that are heightened in the current environment. If your advance parole is approved and you travel, be aware that a discretionary denial while you are abroad could leave you outside the United States without a clear path back in.
- Prepare for an RFE proactively Practitioners are already reporting increased RFE rates and more detailed interview questions specifically about why the applicant chose to adjust inside the U.S. rather than consular process abroad. Gather your positive-factor documentation now — don't wait for the RFE to arrive.
- Prepare for interview questions about consular processing Officers are asking: Why did you apply to adjust status inside the U.S. instead of consular processing abroad? Are there any factors that would prevent you from consular processing? What family or other ties do you have in your home country? Prepare clear, honest answers to each of these with your attorney.
- Maintain your nonimmigrant status If you are in valid nonimmigrant status while your I-485 is pending, maintaining that status throughout is more important than ever. Allowing it to lapse increases your adverse-factor profile under the new framework.
- Compile your positive-factor documentation Joint bank statements, lease or mortgage documents, tax returns, pay stubs, community and employer letters, evidence of civic involvement, proof of hardship to U.S. family members if you were required to leave — these are the documents that directly respond to the new discretionary standard.
If You Have Not Yet Filed
Our recommendation: if you are eligible to file and your profile is otherwise strong, move forward. Waiting does not make the environment better — if anything, USCIS has signaled additional category-specific guidance may be coming, which could make future filings more uncertain. The memo has been in effect since May 21, 2026, and the discretionary standard it articulates is already being applied.
What the new environment demands is a stronger initial filing package. Under the old, more permissive adjudication climate, many family-based applications were approved without a robust affirmative discretionary case. That era is over. A strong 2026 adjustment filing should include, at minimum:
- A personal statement or legal memorandum explaining why your case warrants a favorable exercise of discretion — not just why you are eligible, but why approval is in the best interest of the United States
- Evidence of your relationship with your U.S. citizen or LPR petitioner — joint finances, shared residence, photographs across time, correspondence
- Proof of hardship to your U.S. family members if you were required to depart for consular processing
- Employment records, tax returns, pay stubs showing a history of lawful contribution
- Letters from employers, community organizations, religious institutions, or neighbors attesting to your character, community ties, and integration
- For applicants in dual-intent categories: documentation of continuous lawful status maintenance and compliance history
- For applicants with any adverse history: a specific, factually-grounded argument for why positive equities substantially outweigh that history
Even under increased scrutiny, adjustment of status inside the United States gives you access to an Employment Authorization Document (I-765) and advance parole (I-131) during the pending period — benefits that consular processing does not provide. For most applicants, these advantages still outweigh the increased scrutiny of the new memo, particularly for those with strong positive-factor profiles. Switching to consular processing is not the automatic solution many assume — departing the United States can trigger unlawful presence bars of three or ten years for applicants who have been out of status, a consequence far more serious than any amount of RFE scrutiny.
Special Warning: B-2 to Marriage-Based Green Card
PM-602-0199 has made the B-2 tourist visa to marriage-based adjustment pathway the highest-risk filing pattern in the current family-based immigration environment. Two legal doctrines now stack against this approach simultaneously.
First, the 90-day rule in the Department of State's Foreign Affairs Manual creates a presumption of willful misrepresentation if a B-2 entrant marries a U.S. citizen and files Form I-485 within 90 days of entry. USCIS has long applied this logic in its own adjudications under Policy Manual Volume 8, Part J. Second, the new memo explicitly instructs officers to treat, as an adverse discretionary factor, conduct inconsistent with the purpose of a temporary admission — which is precisely the fact pattern this filing creates: entering as a tourist with intent to marry and remain.
The safer pathways in 2026 are generally: the K-1 fiancé visa, which is specifically designed for this situation and followed by an I-485; or marriage abroad followed by CR-1/IR-1 consular processing, which is often faster door-to-door and avoids the dual-doctrine problem entirely. If you are already in this situation with a pending or contemplated B-2 to adjustment filing, consult with an immigration attorney before taking any further action.
If Your Application Is Denied
A discretionary denial under PM-602-0199 cannot be directly appealed to the BIA in the same way a statutory eligibility denial can be. However, several options may remain available depending on the specific facts and grounds of the denial.
A motion to reopen or reconsider can be filed if there is new evidence or a legal error in the original decision. Because the memo requires officers to issue a written analysis of the positive and negative factors when denying on discretionary grounds, that written record can be reviewed and challenged. If the denial contains factual errors, misapplied the legal standard, or failed to give adequate weight to demonstrated positive equities, there is a basis for challenge.
If a denial occurs and the applicant does not have valid nonimmigrant status, USCIS may initiate removal proceedings. That possibility underscores why presenting the strongest possible case from the outset — before a denial, not after — matters more than it ever has under this new framework. And it is precisely why applicants with any complexity in their history should have experienced legal counsel involved from the beginning of the filing process.
For applicants with children included as dependents on their I-485, a denial carries a specific, additional risk. Under current USCIS policy, children whose ages are "frozen" under the Child Status Protection Act may lose that protection if an I-485 application is denied and the case is not renewed in removal proceedings. This is a serious consequence that your attorney should be factoring into case strategy from the outset.
Frequently Asked Questions
Does the memo apply to I-485 applications already pending before May 21, 2026?
Yes. USCIS has indicated that PM-602-0199 governs adjudications going forward, including I-485 applications that were already pending when the memo was issued. A USCIS officer adjudicating your case today will apply the new discretionary framework regardless of when you filed. This is one of the most important practical consequences of the memo — it is not limited to future filings.
Should I switch from adjustment of status to consular processing because of this memo?
Not automatically — and potentially not at all, depending on your situation. For many applicants, switching to consular processing requires departing the United States, which can trigger three- or ten-year unlawful presence bars for applicants who have any out-of-status history. That consequence is far more severe than anything the AOS memo introduces. This is precisely the kind of decision that requires individualized legal advice based on your specific immigration history. Do not make this decision without consulting an experienced immigration attorney.
I'm married to a U.S. citizen and have a clean record. Should I still be worried?
Your profile remains among the strongest for a favorable exercise of discretion — immediate relatives of U.S. citizens with clean records and legal entry sit in the lowest-risk tier under the new framework. The practical change for you is less about the risk of denial and more about the process: expect more detailed RFEs, more questions at your interview about why you chose to adjust inside the U.S. rather than consular process, and a longer adjudication timeline as officers document their discretionary analysis more thoroughly. Prepare a strong affirmative discretionary package and be ready to answer those interview questions clearly.
Does the memo affect my ability to get an EAD or advance parole while my I-485 is pending?
No — the memo does not address EAD or advance parole eligibility. If your I-485 is filed and pending, you may still concurrently apply for Form I-765 (Employment Authorization Document) and Form I-131 (Advance Parole), and USCIS is still obligated to adjudicate those applications under their normal standards. However, if you use advance parole to travel internationally and USCIS subsequently seeks to deny your I-485 under the new discretionary framework while you are abroad, you could face a complicated re-entry situation. Consult your attorney before any international travel while your case is pending.
Can USCIS change the adjustment of status rules through a policy memo like this?
A policy memorandum is internal agency guidance — it instructs officers on how to exercise discretionary authority that already exists in the statute. USCIS cannot use a policy memo to change the underlying statute, create new eligibility bars, or close a pathway that Congress established. The legal authority to adjust status remains in INA §245(a), unchanged by this memo. What the memo does change is how officers are expected to use the discretionary authority that §245(a) has always provided. Legal challenges to the memo are anticipated, and courts will have the final word on how far this guidance extends.
What is the 90-day rule and why does it matter more now?
The 90-day rule, found in the Department of State's Foreign Affairs Manual at 9 FAM 302.9-4(B)(3), creates a presumption of willful misrepresentation if a nonimmigrant visa holder — commonly a B-2 tourist — marries a U.S. citizen and files an I-485 within 90 days of entry to the United States. USCIS has applied this doctrine in its own adjudications for years. PM-602-0199 now stacks a second layer of adverse factor on top of that doctrine: the conduct of entering on a temporary visa with pre-existing intent to remain is explicitly listed as a negative discretionary factor the officer must weigh. Applicants who entered on a B-2 and married quickly now face two compounding issues in the discretionary analysis rather than one.
Has the New AOS Memo Changed Your Strategy — or Your Risk?
Whether you have a pending I-485, are preparing to file, or are reconsidering your approach after PM-602-0199, the difference between a strong case and a denied one under the new discretionary framework is preparation and documentation. Our attorneys work with family-based and employment-based applicants navigating adjustment of status in this changed environment.
Request a Free Evaluation Contact the Firm- USCIS — Policy Memorandum PM-602-0199 (Full Text, May 21, 2026)
- AILA — Featured Issue: New Policy on Adjustment of Status as Act of Extraordinary Discretion
- Greenberg Traurig — New USCIS Policy Memorandum Addresses Adjustment of Status Adjudications
- WR Immigration — Employer Advisory: USCIS Policy Memorandum on AOS Discretion
- Murray Osorio PLLC — USCIS Policy Memo PM-602-0199 Analysis
- INA §245 — Adjustment of Status of Nonimmigrant to That of Person Admitted for Permanent Residence
This article is for general informational purposes only and does not constitute legal advice. PM-602-0199 is subject to ongoing legal challenges and evolving adjudication practice — the situation may change. Every adjustment of status case is fact-specific. Please consult with a qualified immigration attorney before making any filing or strategy decision based on this guidance.