On May 21, 2026, USCIS issued Policy Memorandum PM-602-0199, fundamentally reframing how officers will adjudicate Form I-485 (Adjustment of Status) applications. The memo directs USCIS adjudicators to treat adjustment of status as “extraordinary relief” and a matter of “administrative grace”—not an entitlement—even where applicants meet every statutory eligibility requirement. This immediately affects pending and future filings across all visa categories, including family-based, employment-based (including EB-5), and humanitarian categories.
What changed
On May 21, 2026, USCIS issued Policy Memorandum PM-602-0199, outlining a change to the adjustment of status (AOS) process under Form I-485. The Policy Memorandum states that applicants for permanent residence should generally process for immigrant visas at U.S. embassies and consulates abroad following immigrant petition approval, except in limited circumstances.
The memo reframes the legal basis for adjustment. The PM characterizes AOS as an “extraordinary” remedy that allows applicants to “bypass” the immigrant visa process through consular processing, which the memo describes as the “normal” procedure that “the Congress generally expects aliens to follow.” The PM instructs officers to apply a case-by-case discretionary analysis, weighing positive and negative factors, including immigration violations, failure to maintain status, and failure to depart, as part of a totality of the circumstances assessment.
Critically, the PM does not address whether it applies to already pending or newly filed AOS applications. There is no stated effective date, and no specific changes have been made to the USCIS Policy Manual. However, USCIS is applying the new framework to already-pending cases immediately, with no transition period and no grandfathering rule.
The PM applies to all AOS applicants, including individuals with: (1) pending or approved family-based immigrant petitions (Form I-130); (2) pending or approved employment-based immigrant petitions (Form I-140); and (3) pending or approved immigrant investor petitions (Form I-526/Form I-526E).
Why it matters
The memo does not eliminate adjustment of status. Under INA §245(n), if approval of an EB-5 petition would make an immigrant visa immediately available to the beneficiary, the beneficiary’s Form I-485 adjustment application is considered properly filed whether it is filed at the same time as the EB-5 petition or after the petition is filed. USCIS’s EB-5 guidance also confirms that, when an immigrant visa is immediately available, an investor may file Form I-485 together with Form I-526 or Form I-526E, while the petition is pending, or after the petition is approved. But the practical bar has risen sharply.
Statutory eligibility is no longer sufficient. The practical reality — already confirmed by RFEs and interview reports immediately following the memo’s release — is that adjustment filings must now be prepared as serious legal and discretionary submissions. Being eligible is no longer enough.
RFEs and interview questions are already being issued. A Request for Evidence on a pending Form I-485 was reportedly issued on May 22, 2026 — the same day USCIS publicly announced PM-602-0199. This confirms that USCIS is applying the new framework to already-pending cases immediately, with no transition period and no grandfathering rule.
Practitioners must now build a discretionary record. Because USCIS may seek to apply the PM to pending applications, applicants may consider gathering evidence of positive discretionary factors, including U.S. employment, absence of immigration violations, family and community ties in the U.S., and U.S. investments (particularly for EB-5 investors). USCIS may issue Requests for Evidence (RFEs) seeking documentation to support the totality of the circumstances determination.
EB-5 investors have statutory protections, but litigation risk is real. This issue may be particularly significant in the EB-5 context. Congress enacted specific provisions governing adjustment eligibility for certain EB-5 investors, including INA §§ 245(n) and 245(k), which many EB-5 petitioners have relied upon in pursuing adjustment of status in the United States. However, litigation in the federal courts may focus on claims under the Administrative Procedure Act (APA), including that the PM constitutes a rulemaking disguised as policy guidance (which would require public notice and comment procedures) and/or that the PM is not in accordance with the law (e.g. the “negative factors” listed in the PM conflict with statutory exceptions that still permit AOS approval).
Way forward
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File now with a comprehensive discretionary narrative. If you have a pending or upcoming Form I-485, treat it as a legal submission that goes far beyond statutory eligibility. Include a statement addressing why adjustment of status is appropriate in this case, the applicant’s ties to the U.S., employment history, family relationships, and any evidence of positive equities. For EB-5 applicants, emphasize the investment amount, job creation, and economic benefit.
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Gather and organize positive discretionary evidence before an RFE arrives. Employment letters, tax returns, evidence of U.S. residence, community involvement, and family ties should all be current and ready. Applicants may consider gathering evidence of positive discretionary factors, including U.S. employment, absence of immigration violations, family and community ties in the U.S., and U.S. investments (particularly for EB-5 investors).
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Address negative factors head-on. If the record includes any immigration violations, brief periods of unlawful employment, visa status lapses, or prior misrepresentations, prepare a candid explanation and evidence of rehabilitation or context. USCIS officers will now weigh these factors more heavily than before.
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Consult with immigration counsel immediately if you receive an RFE. The RFE response deadline was August 12, 2026. If you receive an RFE, contact your office immediately. Deadlines are firm and responses require substantive legal preparation.
Disclaimer
This analysis is provided for informational purposes only and does not constitute legal advice. Folaform is a software company, not a law firm. Immigration policy changes frequently and can be applied retroactively. You should consult a licensed immigration attorney in your jurisdiction before making any filing decisions or responding to government correspondence. Verify all information against the primary source materials and official USCIS guidance before relying on this summary in a legal matter.