On May 21, 2026, U.S. Citizenship and Immigration Services issued Policy Memorandum PM-602-0199, titled “Adjustment of Status is a Matter of Discretion and Administrative Grace, and an Extraordinary Relief that Permits Applicants to Dispense with the Ordinary Consular Visa Process.” Together with an accompanying USCIS press release stating that adjustment of status will be granted “only in extraordinary circumstances,” the memorandum has generated significant alarm among applicants, attorneys, and employers.

The memorandum deserves careful reading. It does not change the eligibility criteria for adjustment of status under section 245 of the Immigration and Nationality Act (INA). It does not amend the regulations. It does not establish a date after which Form I-485 cannot be filed from inside the United States. What it does is redirect how USCIS officers should exercise the discretion that has always been part of section 245(a) — and, in our reading, it does so in a way that materially raises the practical burden on most applicants.

What the memorandum actually says

Section 245(a) of the INA provides that the status of a noncitizen “may be adjusted by [the Secretary of Homeland Security], in his discretion” to that of lawful permanent resident. The phrase “in his discretion” is not new. For more than half a century, federal courts and the Board of Immigration Appeals have characterized adjustment as discretionary rather than as an entitlement.

What PM-602-0199 adds is a particular gloss on how that discretion should be exercised. The central propositions are these:

  • Adjustment of status is “extraordinary relief” that permits applicants to dispense with consular visa processing — which the memorandum characterizes as the ordinary route Congress intended for those seeking permanent residence.
  • Congress generally expects noncitizens admitted as nonimmigrants or paroled into the United States to depart when the purpose of that admission or parole has been served — not to remain and adjust.
  • When a nonimmigrant or parolee instead seeks adjustment of status, that choice is, in the memorandum’s framing, an adverse discretionary factor that the applicant may need to offset “by a showing of unusual or even outstanding equities.”
  • The absence of other adverse factors does not, by itself, demonstrate such unusual or outstanding equities.
  • Officers must consider the totality of the circumstances — family ties, length of residence, employment, moral character — and must explain, in writing, why negative factors outweigh positive ones in any denial based on discretion.

The memorandum’s “Use” section states that it is internal guidance and does not create enforceable rights. The cases it cites — Matter of Blas, 15 I&N Dec. 626 (BIA 1974); Patel v. Garland, 596 U.S. 328 (2022); Elkins v. Moreno, 435 U.S. 647 (1978), and others — are real, and the broad principle that adjustment is discretionary is uncontroversial.

What is new is the operative direction: the very act of applying for adjustment of status, rather than departing and applying for an immigrant visa abroad, is now treated as a discretionary minus rather than as a neutral statutory option.

What the memorandum does not change

To keep this in perspective:

  • Statutory eligibility is unchanged. Inspection and admission or parole, an immediately available visa number, admissibility, and the absence of section 245(c) bars are still the criteria for filing.
  • Filing is still permitted. Form I-485 may still be filed from inside the United States in every category in which the statute allows it.
  • Concurrent filing remains available. I-130 with I-485, or I-140 with I-485 where the priority date is current, may still be filed together.
  • Forms I-765 (work authorization) and I-131 (advance parole) may still be filed alongside I-485, under the same eligibility rules. The economic and travel benefits of a pending I-485 are not altered by the memorandum itself.
  • Non-discretionary adjustment provisions remain non-discretionary. These include adjustment under section 209 of the INA for refugees and asylees, certain Cuban Adjustment Act applicants, and HRIFA applicants — categories Congress expressly removed from discretionary review. The memorandum acknowledges this in its closing footnote.

The memorandum also expressly acknowledges that filing for adjustment “is not inconsistent with simultaneously maintaining nonimmigrant status in a category with dual intent” — meaning H-1B, L-1, V, and K applicants, among others. It then qualifies that maintaining lawful dual-intent status is “not sufficient, on its own, to warrant a favorable exercise of discretion.” Dual-intent applicants are not categorically penalized for adjusting, but they are also not categorically protected.

Who is most exposed under the new framework

Reading the memorandum together with existing USCIS Policy Manual guidance on discretionary analysis (Volume 7, Part A, Chapter 10), the applicants most likely to face heightened scrutiny are:

Visa overstays adjusting through an immediate-relative pathway. Anyone who entered as a B-1/B-2 visitor, F-1 student, J-1 exchange visitor, or other single-intent nonimmigrant and then sought to adjust based on marriage to a U.S. citizen or another immediate-relative pathway. As a practical matter, these are the cases to which USCIS officers are most likely to apply the memorandum aggressively, even though — as discussed below — immediate relatives are the population for whom the strongest statutory-limits-on-discretion argument is available.

Parolees who have remained beyond the purpose of parole. This includes those paroled under category-specific programs and those paroled at the border for inspection. The memorandum expressly identifies failure to depart after the purpose of parole has been served as an adverse factor.

Applicants with any period of unauthorized employment. Even short and ostensibly cured periods may receive renewed attention. Section 245(k) of the INA still expressly cures certain employment-based applicants for aggregate status and employment violations under 180 days, and — as discussed below — the 245(k) cure imposes a statutory limit on what discretion may permissibly weigh for the covered categories. Outside the protected categories, unauthorized employment will weigh heavily.

Applicants with prior visa denials, prior misrepresentation findings (cured or not), prior removal proceedings, or any criminal history. All of these were already adverse factors. The memorandum raises the equities needed to overcome them.

Applicants whose initial entry intent is now in question. The memorandum invites officers to consider whether nonimmigrant entry was consistent with the represented purpose. This is the doctrine of “preconceived intent” reframed and re-energized — and it can reach back years. For immediate relatives of U.S. citizens, however, longstanding BIA precedent significantly limits the weight that preconceived intent may carry, as discussed below.

Who is comparatively better positioned

Several categories are either statutorily protected or face less direct exposure under the new framework:

Refugees and asylees adjusting under INA § 209. These adjustments are non-discretionary. The memorandum does not reach them.

U nonimmigrants adjusting under INA § 245(m), VAWA self-petitioners, and Special Immigrant Juveniles. Congress carved these populations out from most of the section 245(c) bars and from much of the standard discretionary framework. The memorandum expressly references these exceptions.

Section 245(i) grandfathered applicants. Statutory protection against many of the section 245(c) bars remains intact. Discretionary scrutiny still applies, but the statute provides substantial cushion.

Long-tenured dual-intent applicants with clean compliance. H-1B and L-1 beneficiaries with continuous, lawful, well-documented compliance — no unauthorized employment, no overstays, no status gaps — present the cleanest discretionary records the memorandum’s framework can encounter.

Immediate relatives with strong U.S. ties and no adverse history. Even within the broader exposed category, applicants who can document substantial U.S. equities — long marriage, U.S.-citizen children, stable employment, tax compliance, community ties, charitable involvement — present cases that can be argued affirmatively under the new standard rather than defensively.

The statutory limits on discretion: immediate relatives and section 245(k) applicants

Two large categories of applicants face a distinctive legal posture under PM-602-0199 — not because the memorandum exempts them, but because Congress has already, by statute, expressly excused the conduct the memorandum identifies as adverse. For these populations, the memorandum’s framework runs into a fundamental statutory limit on what discretion may permissibly weigh.

Immediate relatives. Section 245(c)(2) of the INA expressly exempts immediate relatives of U.S. citizens — spouses, parents of adult U.S. citizens, and unmarried children under 21 — from three specific bars to adjustment: (1) accepting or continuing in unauthorized employment, (2) being in unlawful immigration status on the date of filing, and (3) failing to continuously maintain lawful status since entry. The carve-out is in the statute, written by Congress, and reflects a deliberate policy judgment that, for this category, those particular forms of past noncompliance do not bar adjustment.

Employment-based applicants protected by section 245(k). Section 245(k) of the INA provides that EB-1, EB-2, EB-3, and certain EB-4 applicants and their derivatives “may adjust status pursuant to subsection (a) and notwithstanding subsection (c)(2), (c)(7), and (c)(8)” so long as their aggregate failure to maintain status, periods of unauthorized employment, and other terms-and-conditions violations do not exceed 180 days after lawful admission. This is a Congressional override, not merely an exemption. Congress drew a quantitative line at 180 days and directed that conduct falling within it shall not bar adjustment for the covered categories.

PM-602-0199, however, identifies precisely the conduct Congress excused for these two populations — overstay, unauthorized employment, failure to maintain status — as adverse discretionary factors potentially requiring “unusual or even outstanding equities” to overcome. Applied to immediate relatives and to 245(k)-protected employment-based applicants, that approach raises a serious statutory problem.

When an agency uses discretionary authority to deny relief on the basis of conduct that Congress has expressly excused for a particular category, the agency is not exercising discretion. It is overriding the statute. The Supreme Court has repeatedly held that an agency cannot, through discretionary authority, undo what Congress has expressly granted. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125 (2000); Utility Air Regulatory Group v. EPA, 573 U.S. 302, 326 (2014). And the canonical rule of statutory construction holds that where Congress includes specific exemptive or override language in one section of a statute, that language is presumed to have meaningful effect. Russello v. United States, 464 U.S. 16, 23 (1983). The “notwithstanding” language in section 245(k) is, if anything, a stronger textual signal than the “other than an immediate relative” exception in section 245(c)(2) — it is an express Congressional direction that the listed bars do not apply.

After Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), federal courts no longer defer to agency interpretations that conflict with the best reading of the statute. The best reading of section 245(c)(2)’s immediate-relative carve-out, and of section 245(k)’s 180-day cure, is that Congress meant to insulate these populations from precisely the factors PM-602-0199 elevates.

For an immediate relative whose I-485 is denied substantially or exclusively because of overstay, unauthorized employment, or status gaps, or for an EB-1, EB-2, or EB-3 applicant whose I-485 is denied based on status or employment violations within the 180-day window, the resulting denial presents a strong question-of-law challenge under INA § 242(a)(2)(D), notwithstanding the broader Patel v. Garland jurisdictional bar. The question whether USCIS may permissibly consider, as adverse discretionary factors, the very conduct Congress has expressly excused for a particular statutory category is, at its core, a legal question. It is a paradigmatic abuse of discretion to deny relief based on a factor the statute removes from consideration.

For the immediate-relative population specifically, this statutory analysis is reinforced by longstanding BIA precedent. In Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980), and subsequent decisions including Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981), the Board held that preconceived intent to immigrate at the time of nonimmigrant entry is not, by itself, a sufficient basis to deny adjustment for the immediate-relative spouse of a U.S. citizen in the exercise of discretion. The Board reasoned directly from the statutory architecture: Congress’s special treatment of immediate relatives reflects a deliberate policy that the discretionary analysis cannot be used to defeat the category Congress chose to favor. Cavazosand its progeny remain BIA precedent. PM-602-0199 does not cite or distinguish them, and cannot lawfully override BIA precedent through a policy memorandum that bypassed notice-and-comment rulemaking.

We are therefore particularly attentive to the framing of immediate-relative and 245(k)-protected employment-based I-485 cases under this memorandum, and to the preservation of the record in any denial that turns on Congressionally-excused conduct.

What this means for your application

Several practical adjustments follow from the memorandum:

Eligibility alone is no longer the case theory. Until this memorandum, a strong, documentarily complete I-485 with no obvious adverse factors could often be filed with a relatively brief cover letter and proceed on the merits. Going forward, we treat every contested I-485 as a brief-supported filing — meaning a comprehensive attorney cover letter that affirmatively documents the equities, addresses any adverse factors head-on, and frames the case under the discretionary factors set forth in Volume 7, Part A, Chapter 10 of the USCIS Policy Manual.

Documentary completeness is more important, not less. Officers acting under this memorandum will look more closely at the record. Tax returns, employment history, education records, family ties documentation, community involvement, evidence of integration, and country-conditions evidence (where relevant to hardship) should be assembled at the time of filing, not in response to a later Request for Evidence.

The choice between adjustment and consular processing should be reconsidered case by case — but consular processing is far less often the safer alternative than first reactions to this memorandum suggest. We develop the comparison in detail in the next section. The short version is that PM-602-0199 raises the discretionary scrutiny applied to adjustment of status, but it does not change the structural procedural advantages of adjudicating one’s case from inside the United States rather than from a foreign consular post.

Status maintenance must be rigorous. Anything that breaks the chain of lawful status — even briefly — becomes harder to mitigate under this framework. For clients in non-dual-intent categories who are contemplating I-485 filings, the question of how to preserve underlying status throughout adjudication is now central rather than peripheral.

Document the equities now. Family photographs, marriage documentation, employment letters, letters of support from employers and community members, evidence of tax compliance, evidence of charitable and civic involvement — every piece of this should be collected and preserved before filing. Equities documented contemporaneously are stronger than equities assembled in response to a denial notice.

The procedural asymmetry between adjustment and consular processing

The common reaction would be for applicants to pivot from adjustment of status to consular processing. That reflects an understandable instinct — the memorandum directs heightened scrutiny at adjustment specifically, while the consular system is, formally, the “ordinary” route Congress envisioned. In our experience, however, this may be the wrong reaction because of a structural asymmetry between the two systems that this memorandum does not alter.

Consular processing carries a set of risks that, when they materialize, are dramatically harder to remedy than the corresponding risks at adjustment of status:

Consular decisions are largely nonreviewable. Under the consular nonreviewability doctrine, federal courts generally do not review the denials of visa applications by consular officers. Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1999); Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. 2008). The Supreme Court reinforced the doctrine last term in Department of State v. Muñoz, 602 U.S. 899 (2024), holding that U.S. citizens have no fundamental liberty interest in their noncitizen spouses’ admission. A consular officer may refuse a visa with a brief citation to a statutory section, and the applicant has, in practical terms, no recourse.

Fifth Amendment due process does not extend to noncitizens abroad. Landon v. Plasencia, 459 U.S. 21, 32 (1982). The procedural protections — notice, an opportunity to respond, reasoned decisionmaking, a written statement of reasons — that constrain USCIS action inside the United States do not apply with the same force to consular decisions.

There is no consular equivalent of a motion to reopen, motion to reconsider, or federal-court question-of-law challenge. A consular denial may be revisited only by the same post. If the post adheres to its denial, the applicant is, in practical terms, stranded.

Departure can trigger an unlawful-presence bar that did not apply before departure. A noncitizen who accrued more than 180 days of unlawful presence in the United States before departing becomes subject to a three- or ten-year bar under INA § 212(a)(9)(B). This trap is acute for immediate relatives who could have adjusted inside the United States without their overstay constituting a statutory bar to adjustment at all, and who, by choosing consular processing, trigger the very inadmissibility ground their adjustment route was designed to avoid. The provisional waiver under Form I-601A is available, but it adds eight to twelve months of additional adjudication and requires a separately-proved extreme hardship to a qualifying U.S. relative.

Administrative processing can extend indefinitely. Even clean cases regularly encounter 221(g) refusals or administrative-processing holds for security checks or additional documentation that resolve in months or years rather than weeks. The only judicial remedy is mandamus, which is itself a constrained vehicle.

By contrast, a denial of an I-485 inside the United States leaves the applicant inside the United States, with options. Motions to reopen and reconsider before USCIS, renewal of the adjustment application before an immigration judge in removal proceedings where applicable, federal-court challenges on questions of law under Wilkinson v. Garland, 601 U.S. 209 (2024), and continued access to counsel, family, and (in many cases) employment authorization all remain available. PM-602-0199 makes adjustment of status harder. It does not make adjustment equivalent to being stranded overseas with no review and no recourse.

The right question for a client weighing the two paths is therefore not “will my I-485 be approved with greater certainty than my consular case?” It is “if something goes wrong, do I want to be inside the United States — with access to courts, procedure, family, and counsel — or outside it without them?” For most applicants, including many with clean records and tolerance for time abroad, the honest answer to the second question still favors adjustment.

The legal landscape ahead

The memorandum will almost certainly be challenged in federal court. The most likely vehicles are pre-enforcement challenges under the Administrative Procedure Act, brought by immigration-rights organizations or coalitions of state attorneys general. The strongest theories will be that the memorandum represents an unacknowledged change to longstanding agency policy — in particular, the framework set out in Matter of Arai, 13 I&N Dec. 494 (BIA 1970), which the memorandum does not cite — and that the agency failed to consider relevant factors and reliance interests as required by Department of Homeland Security v. Regents of the University of California, 591 U.S. 1 (2020).

For applicants whose individual cases are denied under the memorandum, federal-court review is substantially constrained by Patel v. Garland, 596 U.S. 328 (2022), which limits review of discretionary adjustment denials to constitutional claims and questions of law. The most promising individual-case theories will be that USCIS treated the act of seeking adjustment as a per se adverse factor — a legal error subject to review under Wilkinson v. Garland, 601 U.S. 209 (2024) — or that the agency misapplied the long-settled Arai framework.

In the meantime, however, the memorandum is the operative guidance. Cases filed today will be adjudicated under it. Litigation outcomes, when they come, are months to years away.

How USCIS applies this memorandum will matter as much as what it says

A memorandum is text on a page. Its real legal significance is measured in how USCIS officers apply it in actual adjudications. That is where we and the broader immigration bar will be watching closely over the coming months, and where the strongest legal challenges to PM-602-0199 will be developed.

The doctrinal question is this: under Matter of Arai, 13 I&N Dec. 494 (BIA 1970) — controlling BIA precedent that has governed adjustment-of-status discretion for more than fifty years — “in the absence of adverse factors, adjustment will ordinarily be granted, still as a matter of discretion.” If USCIS officers begin denying — or, as we and other practitioners are increasingly observing, are already denying — I-485 applications in cases where no adverse factors are present, then the agency is no longer exercising case-by-case discretion. It is applying a per se rule against adjustment, dressed up in the language of discretion.

That distinction is doctrinally significant. A per se rule disguised as discretion is, in substance, a substantive change to a long-settled agency standard. Under the Administrative Procedure Act, substantive rule changes generally require notice-and-comment rulemaking under 5 U.S.C. § 553 — which PM-602-0199 did not undergo. Equally important, the jurisdictional bar set out in Patel v. Garland, 596 U.S. 328 (2022), shields the agency from federal-court review only as to genuine exercises of case-by-case discretion. It does not insulate the agency from challenges to a uniform pattern of denials that contradicts controlling BIA precedent. A pattern is a question of law and policy, not a discretionary judgment.

This is the difference between an individual abuse-of-discretion claim — which Patel largely forecloses — and what is generally called a pattern-or-practice challenge. The Supreme Court drew that line in McNary v. Haitian Refugee Center, 498 U.S. 479 (1991), which held that statutory bars on individual-case review do not eliminate federal-court jurisdiction over challenges to systemic agency conduct. The D.C. Circuit applied the same logic in Make the Road New York v. Wolf, 962 F.3d 612 (D.C. Cir. 2020), to a challenge to immigration policy changes that effectively rewrote agency standards without proper rulemaking.

If, in the coming months, a documented pattern emerges of USCIS denying clean-record I-485 applications under PM-602-0199, that pattern itself becomes the evidentiary core of a pre-enforcement APA challenge by organizational plaintiffs, of state attorney general challenges, and potentially of a coordinated suit by similarly-situated applicants. We are tracking adjudication outcomes in our own cases and through our professional networks for precisely this purpose. Clients whose adjustments are denied without identifiable adverse factors should preserve their denial notices and contact us promptly — both to evaluate their individual options (motion to reopen, renewal in removal proceedings where applicable, federal-court question-of-law challenges under Wilkinson v. Garland) and because their case may contribute to the evidentiary record supporting a broader systemic challenge.

If you have a pending or planned I-485

Whether your case is already filed, is being prepared, or is one you have been contemplating, we recommend a review with counsel before your next step. The questions that matter most under this memorandum are not always obvious from the surface of a case — entry history, status maintenance, employment timeline, family situation, and the strength of your documentary equities all matter more now than they did a week ago.

Our firm has prepared adjustment-of-status filings across every major category — family-based, employment-based, VAWA, U adjustment, asylee adjustment, section 245(i) cases, and complex matters involving prior inadmissibility, criminal history, or status violations. We are actively revising our internal filing standards in response to PM-602-0199 to ensure that every I-485 we submit is structured to meet the new discretionary scrutiny on its strongest possible footing.

If you would like us to review your case under the new framework, please book a consultation with our office. .

This article is for general informational purposes and does not constitute legal advice. Immigration law is highly fact-specific. Please consult with a licensed immigration attorney about the application of PM-602-0199 to your particular case.