On May 21, 2026, USCIS issued a new policy memo reminding immigration officers and the public that adjustment of status is a matter of discretion and administrative grace, consistent with longstanding immigration law and immigration court decisions. The memo, PM-602-0199, signals a material shift in how officers will evaluate I-485 applications and signals heightened scrutiny ahead for pending and future cases.
What changed
USCIS issued Policy Memorandum PM-602-0199, which reiterates that adjustment of status under INA Section 245 is discretionary in nature and not guaranteed, even where statutory eligibility is met. The memorandum does not create new eligibility requirements or prohibit adjustment of status filings. Rather, it reiterates longstanding legal principles that USCIS officers retain broad discretion in adjudicating adjustment applications and may deny cases even where the applicant otherwise meets the technical eligibility requirements.
The memo directs officers to undertake a totality-of-the-circumstances analysis when exercising discretion. Officers must weigh adverse and positive factors, evaluating violations of immigration laws or status conditions, fraud or false statements in interactions with any government agency, conduct that is inconsistent with the purpose of the applicant’s nonimmigrant status or parole, failure to depart as expected (particularly where there was an intent to remain permanently), as well as family ties, immigration history, and moral character.
USCIS has made clear that applicants must affirmatively demonstrate positive equities, meaning you need to show why approval is warranted, not just that there is nothing working against you. Best practice is now to submit evidence that an applicant warrants a favorable exercise of discretion at the time of filing.
The memo acknowledges possible exceptions, including nonimmigrant visa categories that allow “dual intent” (meaning you can hold a temporary visa while also pursuing a green card) and cases where adjustment of status is the only available pathway to permanent residence. However, the USCIS policy memo does caution that maintaining H-1B or L-1 dual-intent status alone is not sufficient, on its own, to warrant a favorable exercise of discretion.
Why it matters
The most likely near-term consequence is an uptick in Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) as officers document their discretionary analysis more thoroughly. This could slow processing timelines and require more detailed responses to agency inquiries. The memo language suggests it is currently in effect and applies to pending and future applications.
For practitioners, this memo changes adjudication strategy. The memo encourages officers to consider why a person has overstayed their visa or parole period, why they have not left the U.S., and whether a person could consular process instead. The memo suggests that staying in the U.S. to go through this process should be very limited. This means applicants with overstays, status violations, or any conduct inconsistent with their visa category face heightened risk.
That said, for spouses of U.S. citizens — historically the group that has received the most favorable exercise of USCIS discretion — attorneys expect that dynamic to continue, particularly for applicants with no arrest record and no prior immigration violations and can demonstrate positive factors for remaining in the U.S.
Way forward
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Audit your client’s file for adverse factors. Gather documentation addressing any status violations, overstays, prior immigration violations, or conduct that may appear inconsistent with the purpose of the applicant’s visa category. Expect officers to probe why the applicant did not consular process.
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Build affirmative equity evidence now. Do not rely on the absence of negative factors. Submit evidence of family ties, community integration, employment history, tax compliance, moral character, and contributions to the U.S. economy at the time of filing.
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Maintain continuous lawful status. If you are in a valid nonimmigrant status while your adjustment of status is pending, continue to maintain that status and comply with all its conditions. Allowing your nonimmigrant status to lapse while your application is pending increases your risk profile under this new guidance.
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Consider timing and visa category. For clients in non-dual-intent categories (F-1, TN, J-1, O-1) with any status history issues, consult carefully about whether to adjust or consular process. H-1B and L-1 beneficiaries remain better positioned under the memo, but only if supported by positive equities.
Disclaimer
This article is for informational purposes only and does not constitute legal advice. USCIS policy can change without notice. Adjustment of status cases involve complex fact-specific analysis. All applicants should consult with a licensed immigration attorney to evaluate their individual circumstances against the current policy framework and applicable law. Verify all guidance against the official USCIS memo and any subsequent agency guidance.