Key Considerations for Employers and Foreign Nationals
On May 21, 2026, the U.S. Citizenship and Immigration Services (USCIS) released Policy Memorandum PM-602-0199, which clarifies that adjustment of status is a discretionary remedy allowing applicants to bypass the conventional consular visa process. This memo was issued alongside a USCIS news release, which emphasized a new framework for evaluating adjustments under Section 245 of the Immigration and Nationality Act (INA). While it does not modify any existing laws or regulations, it instructs officers to view accommodations as an exceptional form of relief, indicating that scrutiny over discretionary decisions will intensify.
USCIS spokesman Zack Kahler underscored this shift, stating that most temporary foreign nationals seeking green cards will likely need to return to their home countries to apply at a U.S. consulate, with exceptions for extraordinary circumstances. This change has notable implications for employers looking to sponsor foreign talent and for individuals who reside in the U.S. and were anticipating an in-country adjustment of status.
Insights from the Policy Memo
PM-602-0199 does not restrict eligibility criteria; rather, it reinforces USCIS’s established viewpoints on discretionary applications under Section 245(a). Key points emphasize:
- Adjustment of status is granted as a matter of discretion and administrative leniency, not a guaranteed right.
- Accommodations serve as a unique pathway for foreign nationals to attain lawful permanent residency without departing the U.S.
- This process is designed to be an exception rather than a substitute for obtaining visas through consular processing.
- Meeting technical eligibility standards alone does not ensure approval for adjustment of status.
The memo cites a range of legal precedents dating back to the Blas case (BIA 1974) and reaffirms that accommodations are not intended to supplant the normal consular visa issuance process.
Critically, USCIS indicated that applicants who remain in the U.S. in violation of expectations may need to demonstrate an “unusual or outstanding stock” to counterbalance any negative factors. Notably, merely lacking adverse conditions is insufficient to justify an adjustment.
USCIS to Heavily Weigh Discretionary Factors
The memo directs adjudicators to evaluate the full spectrum of circumstances when considering discretionary cases, with a strong focus on factors such as:
- Violations of U.S. immigration laws or prior immigration status conditions.
- Instances of fraud or false representations involving USCIS or other governmental entities.
- Consistency of the applicant’s admission with relevant laws, regulations, and policies.
- Post-admission behavior that contradicts the expectations of nonimmigrant status.
- Failure to maintain lawful status or depart the U.S. by the end of the authorized period.
- Intent to reside permanently in the U.S., particularly if the applicant could have utilized the consular immigrant visa process.
Additionally, officers must consider moral character, familial connections, immigration history, duration of residence, and humanitarian factors, continuing the established framework from the Méndez-Morales case (BIA 1996).
Understanding Dual Intent Categories
USCIS acknowledges that applying for adjustment of status aligns with maintaining nonimmigrant status for certain dual-intent categories, such as H-1B and L-1 visas. However, being in a dual-intent classification does not guarantee a favorable discretionary outcome. For instance, an H-1B or L-1 applicant filing an I-485 form must expect a thorough review of their immigration history and behavior, even if they maintain their status.
Adjustment Categories Remain Unaffected
It is important to note that the memo does not alter the established legal framework for adjustment categories that Congress has deemed non-discretionary, including adjustment based on asylum and refugee status under INA § 209(a). For these applicants, USCIS is compelled to approve applications if statutory and regulatory requirements are met, irrespective of the new discretionary notes.
Furthermore, there is an indication that USCIS plans to provide additional guidance for particular adjustment categories and specific groups of individuals, with a focus on employment-based applications expected soon.
Implications for Employers and Foreign Employees
The practical repercussions of this memo will significantly rely on how USCIS adjudicators implement the new discretionary framework. Certain risks are already becoming apparent:
- A rise in denials based on adverse discretion, particularly affecting applicants with technical compliance issues (e.g., unauthorized employment or past misrepresentations).
- Lengthier application processes and an increase in requests for evidence (RFEs). Adjudicators may require comprehensive documentation to support discretionary decisions.
- Consular processing is likely to be favored as a safer alternative for individuals unable to demonstrate “unusual or outstanding stock.”
- Pre-litigation assessments will be essential, prompting a thorough review of applicants’ immigration histories prior to filing for adjustment.
- Candidates in non-dual-intent categories will likely face intensified scrutiny regarding their original admission intentions.
Recommendations for Employers
In response to these changes, employers sponsoring foreign nationals for permanent residence should take immediate steps:
- Conduct audits of pending and future I-485 applications to identify any compliance gaps or potential adverse issues.
- Document positive factors comprehensively at the filing stage, including family ties, U.S. tax compliance, and community involvement.
- Explore consular processing as an alternative for high-risk cases, considering possible travel and administrative risks.
- Maintain open communication with sponsored employees regarding upcoming changes, RFEs, and the significance of legal status during the I-485 process.
- Stay updated on specific guidance from USCIS as it emerges.
Harris Beach Martha’s Expertise
The Immigration Practice Group at Harris Beach Martha is dedicated to analyzing these policy shifts and advising employers on application strategies, evidence requirements, and processing decisions under this new discretionary structure. Our team assists clients in assessing risks prior to application submissions, formulating strong equity packages, addressing negative discretionary RFEs, and exploring alternative pathways should adjustment of status become less reliable.
