On May 21, 2026, U.S. Citizenship and Immigration Services (USCIS) issued Policy Memorandum PM-602-0199. In the memo, USCIS argues that adjustment of status under INA § 245 is a matter of discretion and administrative grace — not a right — and characterizes it as “extraordinary relief” available to dispense with the regular consular visa process only in meritorious cases. USCIS argues that this policy is not new but rather “longstanding”, despite the fact that the policies announced in the memo represent a significant departure from actual USCIS policy and practice as exercised for decades.
What the Memo Says
The core message is that, even if you meet all technical eligibility requirements for adjustment of status, USCIS is not required to approve your case, and indeed, should not approve your case outside of “extraordinary” circumstances. The agency claims that this is longstanding case law, relying heavily on a case from 1970s, Matter of Blas (BIA 1974), as well as other older case law holding that adjustment is an “extraordinary act” of “administrative grace,” not the routine immigration benefit that it has become in practice in the years since Matter of Blas was written.
The memo instructs officers to weigh all relevant factors in a totality-of-the-circumstances analysis, including:
- Compliance with immigration laws and conditions of any status held
- Any fraud or misrepresentation in dealings with USCIS or other government agencies
- Whether the applicant’s original admission or parole complied with applicable laws and policies at the time
- Conduct after admission inconsistent with the purpose of nonimmigrant or parole status
- Failure to depart as expected, particularly where the applicant could have pursued an immigrant visa through consular processing abroad
- The applicant’s “moral character”
- Whether approval serves the national interest — a broad standard that significantly expands officer discretion.
Critically, the memo states that the absence of adverse factors alone is not enough to demonstrate the “unusual or outstanding equities” required to warrant approval.
All in all, this increases the burden on applicants to prove that, not only do they meet the eligibility requirements for adjustment of status, such as an approved immigrant petition, inspection and admission, and maintenance of lawful status, they must also make a compelling argument that they meet subjective factors meriting the favorable exercise of discretion for an “extraordinary” benefit.
Who Is Most Affected?
Understanding who this memo actually affects requires separating two distinct legal layers: statutory eligibility and discretion.
INA § 245(c) already bars most nonimmigrants — other than immediate relatives of U.S. citizens and certain employment-based applicants — from adjusting status if they were out of status or worked without authorization at the time of filing. That is a pre-existing statutory bar this memo does not change.
This memo operates above that floor, at the discretionary layer. It targets people who are technically eligible to adjust — they cleared the § 245(c) bars — but whose conduct USCIS will now scrutinize more harshly. The affected populations include:
- Parolees who entered under humanitarian or public benefit parole programs and are now seeking to adjust rather than depart and consular process. The memo specifically quotes the statutory parole standard, emphasizes that parole is temporary, and states that parolees who seek adjustment instead of departing “contravene Congressional expectations.” No equivalent carve-out for parolees exists in the memo.
- Applicants with any immigration history issues—the memo states that any immigration violations or inconsistent conduct will be considered as negative factors, meaning that the following individuals will need to argue that these negative factors are outweighed by positive factors:
- Individuals who have ever been “out of status”—this is easy to do accidentally. If an I-94 expires while a change or extension of status is pending, and the applicant departs causing the change or extension to be denied, the time spent waiting for the pending application can be considered time “out of status”
- Individuals who have ever engaged in “unauthorized employment”—again this may occur unintentionally; for example, a student may take a “volunteering” position not understanding the complex rules around when this is permitted.
- Individuals whose conduct is deemed “inconsistent with their original visa purpose”—this includes non-dual intent nonimmigrants (i.e. all visa types aside from H-1B or L-1 visas) who have filed for adjustment of status, rather than departing after their nonimmigrant status expires. The memo explicitly acknowledges that dual intent visa holders (H-1Bs and L-1s), are not “acting inconsistently,” but warns that maintaining lawful dual-intent status alone is not sufficient to warrant a favorable exercise of discretion.
- Immediate relatives of U.S. citizens who overstayed but remain eligible to adjust — they clear the statutory bar, but now face heightened discretionary scrutiny under this memo.
- Applicants with any criminal history—the memo invokes “moral character”, an issue not typically raised in adjustment applications, but which in other immigration contexts such as naturalization is usually raised when an applicant has any criminal or arrest record.
The memo’s language appears particularly aimed at the above-listed applicants (especially parolees), but its scope extends broadly to any applicant where consular processing abroad was a viable alternative.
Judicial Reviewability of USCIS Denials
USCIS goes to great pains to emphasize that its discretionary decisions are “unreviewable”, meaning that a discretionary denial cannot be appealed to a higher court. This aspect of the memo is likely to be challenged in litigation.
What Officers Must Do When Denying
The memo affirms the default procedural standard: when USCIS denies an I-485 based on an unfavorable exercise of discretion, officers must issue a written denial notice that identifies all positive and negative factors considered and explains why the negative factors outweigh the positive. This creates a reviewable record for motions to reopen or appeal — which matters greatly if litigation expands access to judicial review.
Our Preliminary Assessment
This memo does not change statutory eligibility requirements, but it materially changes the adjudicatory climate for adjustment of status applications. USCIS appears to be laying the groundwork for more frequent discretionary denials — and for rejecting applications that previously would have been routinely approved.
We anticipate litigation. Two aspects of this policy will almost certainly be tested in court. First, the memo’s treatment of parolees who entered under lawful programs as generally disfavored for adjustment conflicts with decades of practice. Second, and more broadly, the memo characterizes the Secretary’s discretion as “generally unreviewable” — a position that advocacy organizations and affected applicants will challenge, as courts have historically placed meaningful limits on how broadly USCIS can exercise its discretion to deny otherwise-eligible applicants.
One additional item to watch: the memo expressly reserves the right to issue further category-specific guidance for particular applicant groups (“USCIS may provide policy guidance specific to certain adjustment of status categories or discrete populations of aliens to aid officers in identifying those applications that may or may not warrant this act of grace and exception to the regular consular process.”). That means this is not the end of the policy development — additional restrictions targeting specific visa categories or entry types may follow.
Importantly, the memo states on its face that it does not create enforceable rights for applicants or third parties and constitutes internal agency guidance only. That framing, while standard, does not insulate the policy from judicial review under the Administrative Procedure Act — and we expect that argument to be made.
What You Should Do Now
If you have a pending I-485 or are considering filing one, this memo makes thorough case preparation more important than ever:
- Document your equities thoroughly — family ties, length of U.S. residence, employment history, community contributions, and tax compliance
- Address any prior status issues proactively and in writing in your filing
- Do not assume a clean record is enough — the memo explicitly states that absence of adverse factors alone does not establish the required “unusual or outstanding equities”
- Consult with an immigration attorney before filing, particularly if there are any gaps in lawful status, prior violations, or a history of parole-based entry
This blog post is for general informational purposes only and does not constitute legal advice. Immigration law is highly fact-specific. Please contact our office to discuss your individual circumstances.
Stay tuned — we will update this post as litigation develops and as USCIS issues further category-specific guidance.
