USCIS Clarifies Discretion in Adjustment of Status Applications
On May 21, 2026, USCIS issued Policy Memorandum PM‑602‑0199, which serves as a reminder that the adjustment of status (AOS) process is fundamentally a matter of discretion and administrative deferral, rather than an inherent right. The memorandum categorizes AOS as an “unusual” form of relief and underscores the necessity for applicants to demonstrate that they merit a favorable discretion from the authorities.
Clarification of Memo’s Role
The memorandum does not introduce changes to existing statutes or eligibility categories under INA § 245. It reinforces the understanding that simply meeting eligibility requirements does not guarantee approval for AOS. This guidance serves as a crucial reminder for both applicants and USCIS staff regarding the discretionary nature of the application process.
Shift in USCIS’s Approach
USCIS has shifted its tone, now instructing officers to treat Form I-485 decisions as discretionary deferments. Choosing to pursue AOS instead of consular processing, or remaining in the U.S. beyond the permitted nonimmigrant status, could be viewed negatively. Consular processing continues to be regarded as the preferred method, signaling a serious reconsideration of traditional practices.
Case-by-Case Review Criteria
Officers are now required to evaluate applications on a case-by-case basis, balancing compliance history with any status violations, unauthorized employment, or misrepresentation. While dual-intent visa categories, such as H‑1B and L-1, retain their validity, the memo emphasizes that merely holding dual-intent status does not guarantee a favorable discretionary outcome.
Implications for Applicants
The memorandum mandates that USCIS provide a written disclaimer detailing both positive and negative factors in each case, explaining why the negatives predominate. This documentation can be contested and may influence future applications. Limiting judicial review as established in the Supreme Court case Patel v. Garland, the memo advises that maintaining comprehensive records at the time of filing is increasingly crucial.
Future Guidance from USCIS
Looking ahead, USCIS has indicated the possibility of issuing categorical guidance for specific groups, although the ramifications for employment-based AOS, EB-5 investors, and family-based applications remain uncertain. Stakeholders in these areas are advised to pay close attention to future announcements for clarity and direction.
Considerations for Clients
For employees with a clean compliance history in dual-purpose categories, AOS remains a viable option, especially when the Form I-485 package ensures a strong positive discretionary profile. However, for those with compliance gaps or past overstays, pursuing consular processing with a thorough §212 review could be a prudent alternative. While no immediate actions are required for pending I-485 applications, increased requests for evidence (RFEs) and extended adjudication timelines are anticipated. Our interpretation suggests that while the memo does not alter the law, it changes the decision-making landscape; qualifications alone are not enough to secure approval. We will monitor trends in employment and family-based AOS volumes, RFE occurrences, and denial reasons as USCIS implements this guidance, and we will provide updates on specific category directives as they emerge.
This immigration update is intended for informational purposes and does not replace legal or scenario-specific advice. Immigration policies can shift unpredictably, and readers should consider reaching out to Newland Chase for assessments tailored to their specific situations.
