On May 21, 2026, the U.S. Citizenship and Immigration Services (USCIS) issued Policy Memorandum 602-0199 stating that adjustment of status (AOS) — the process of applying for lawful permanent residence from within the United States — is a discretionary form of immigrant relief. The memo represents a seismic shift in how USCIS officers will evaluate I-485 applications and affects all pending and future cases, regardless of family- or employment-based category.
What changed
USCIS announced a new policy memo reiterating that, consistent with long-standing immigration law and immigration court decisions, aliens seeking adjustment of status must do so through consular processing via the Department of State outside of the country. However, the agency also clarified that adjustment remains available in limited circumstances.
Adjustment of status will now only be granted in “extraordinary circumstances.” Rather than defining “extraordinary” exhaustively, USCIS officers are directed to consider all relevant factors and information on a case-by-case basis when determining whether an individual’s situation qualifies as “extraordinary” enough to warrant in-country adjustment of status.
The memo emphasizes discretionary factors that officers must weigh:
- Whether the foreign national’s application for admission or parole violated laws, regulations, and policies; the memo emphasizes that a foreign national’s failure to comply with the conditions of nonimmigrant admission or parole and failure to depart as expected are “highly relevant” negative factors.
- Prior immigration violations, fraud, or misrepresentation.
- Conduct after admission inconsistent with the purpose of the nonimmigrant or parole status.
- Preconceived intent to immigrate when the visa did not authorize immigrant intent.
Critically, because the favorable exercise of discretion is assessed at the time of final adjudication, the heightened standard applies to every I-485 application that has not yet been approved, regardless of when it was filed, and the memo does not contain a prospective-only carve-out for already-pending cases.
One partial exception: certain classes of adjustment applicant may be less impacted by the change — specifically, H-1B and L-1 workers and their dependents — due to the unique regulations involving dual intent for these types of visa holders. 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
While the legal framework is unchanged, the realistic effect is there likely will be a shift in adjudicatory posture; USCIS officers will apply more rigorous scrutiny to adjustment applications, particularly with respect to immigration history and status maintenance.
This memo transforms adjustment of status from a routine procedural benefit into a discretionary relief determination. You must now affirmatively document “positive equities” — evidence that the applicant warrants approval despite applying from within the U.S. instead of pursuing consular processing. The absence of negative factors is no longer sufficient; you must affirmatively demonstrate why adjustment serves the interests of justice or national interest.
The retroactive application is especially significant: cases pending since 2020, 2021, or earlier are now subject to this heightened standard when they reach adjudication. The policy memorandum took effect immediately and may be applied to both pending and future adjustment applications. An RFE requesting additional evidence of discretionary justification can now arrive at any stage, and adjudicators have wide latitude to deny cases they would have approved under the prior routine practice.
Single-intent nonimmigrant holders — F-1 students, B-1/B-2 tourists, and others — face heightened risk, because their very act of pursuing adjustment while in the U.S. may be characterized as conduct inconsistent with their visa’s purpose.
Way forward
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Audit pending cases immediately. For any I-485 not yet adjudicated, prepare a supplemental submission documenting positive equities: national-interest factors, ties to the U.S., length of residence, family relationships, employment history, lack of prior violations, and any other circumstance explaining why discretion should favor approval.
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Preserve nonimmigrant status when possible. If your client has valid H-1B, L-1, or another dual-intent status, maintain it until the I-485 is approved. If USCIS denies the application, valid nonimmigrant status acts as a safety net and prevents out-of-status fall.
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Do not panic-withdraw. If withdrawn, individuals will not lose their valid nonimmigrant status, but if they do not have an underlying status, they would no longer be in a “period of stay authorized by (DHS)” and would be abandoning any Employment Authorization Documents (EAD) and Advance Parole travel authorizations. Consult before withdrawing any pending I-485.
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Consider consular processing for new cases where feasible. For applicants not yet filed, evaluate whether consular processing may be faster or more certain, particularly where the applicant has visa ineligibility concerns or prior immigration history issues that the memo flags as adverse factors.
Disclaimer
This article is for informational purposes only and does not constitute legal advice. The information presented is based on the USCIS Policy Memorandum PM-602-0199 and contemporaneous analysis by immigration law firms. USCIS policy can change without notice, and implementation practices may evolve. You should verify all information against the official USCIS policy memo and consult a licensed immigration attorney regarding your specific circumstances and case strategy. Articles.folaform.com is a software platform, not a law firm, and this content does not create an attorney-client relationship.