On May 22, 2026, USCIS released Policy Memorandum PM-602-0199 which introduced drastic changes for how adjustment of status applications will be processed going forward. The Policy Memorandum relies heavily on language in Section 245(a) of the Immigration and Nationality Act (INA) which states approval of an application for Adjustment of Status is discretionary.

USCIS's goal is clear: the agency intends to use that discretion to approve adjustment of status applications only in limited situations where it deems “administrative grace” is warranted. USCIS wants to push applicants seeking lawful permanent residence (LPR) to apply through by Consular Processing for an Immigrant Visa, absent an extraordinary circumstance preventing them from doing so.

At this time, guidance still has not been provided as to whether pending applications will be impacted by this guidance. Anyone filing a new application going forward can expect more scrutiny on their Form I-485, Application for Adjustment of Status. 

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The Legal Argument

USCIS bases the Policy Memorandum on Matter of Blas, 15 I&N Dec. 626, 628 (BIA 1974; A.G. 1976), aff'd, 556 F.2d 586 (9th Cir. 1977) (table), in which the Board of Immigration Appeals stated that “[approval of adjustment of status] is extraordinary inasmuch as it dispenses with ordinary immigration procedure…[it] can only be granted in meritorious cases, and that the burden is always upon the alien to establish that his application for relief merits favorable consideration.” Matter of Blas, supra, at 630. 

The Policy Memorandum goes on to cite various federal cases all of which support the point that approval of an adjustment of status application is based on whether the applicant has shown that a favorable exercise of discretion is warranted to USCIS's satisfaction.

Applicants bearing the burden of proving their eligibility is not a new concept. Petitioners seeking an immigration benefit through USCIS must establish their eligibility for that benefit by a preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010); Matter of Brantigan, 11 I&N Dec.493 (BIA 1966); Matter of Soo Hoo, 11 I&N Dec. 151, 152 (BIA 1965); see also Volume 1, USCIS-PM Part E, Chapter 8 - Discretionary Analysis; Volume 7, USCIS-PM, Part A, Chapter 10 - Legal Analysis and Use of Discretion. 

Historically, the USCIS Policy Manual has included a list of both positive and negative factors to be considered by officers when adjudicating applications. Where positive factors outweighed negative factors, officers were instructed to approve the application. USCIS officers are now being instructed to view applying for adjustment of status as a negative factor against when it would have been possible to apply for Consular Processing. 

What is new, however, is the “extraordinary circumstances” standard that USCIS is seeking to put in place. While the Policy Memorandum is seeking to frame the change as clarification of existing practice, the implementation of a new standard for applicants appears to be an attempt to circumvent the rulemaking process under the Administrative Procedure Act.

The Policy Memorandum argues that Congress signaled its intent to prioritize Consular Processing over the adjustment of status process by including language in the INA limiting who was eligible to apply for adjustment of status. Only those who have been inspected and admitted are eligible to apply under the INA. The Memorandum goes on to state that nonimmigrants are expected to depart the United States at the end of their period of admission or parole, which signals that Congress clearly intended Consular Processing to be the primary avenue for those seeking LPR status.

The Policy Memorandum's arguments are a stretch - there is no language explicitly signaling that Congress intended to make adjustment of status a secondary avenue to obtaining LPR status, available only in extraordinary circumstances. The authors of the memorandum appear to contend that adjustment of status applications have been approved indiscriminately in the past. This is of course, not true. Limitations on eligibility have always been in place for adjustment of status applicants. In many cases, overstaying a visa or being out of status prevent an applicant from being eligible except in limited circumstances. Applying for adjustment of status was not and has never been a way to circumvent immigration law. Rather, it has been an option available to applicants who are in the United States. 

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What does this mean for Adjustment of Status Applicants?

 As of May 25, 2206, no additional guidance has been provided from USCIS. For that reason we do not know the full scope of the impact this Policy Memorandum will have. It is unclear if the Policy Memorandum will be backdated to apply to all pending applications or whether it will only apply to new cases. It is also unclear how the Policy will be applied by USCIS when making decisions on adjustment of status cases.

Factors to be considered include, but are not limited to:

• Family ties within the United States

• Long term residence in the United States (particularly when residence began at a young age);

• Hardship to the applicant or applicant's family if adjustment of status is not approved;

• Service in the United States Armed Forces;

• Employment history

• Owning property or a business in the United States

• Service and giving back to the community

• Proof of rehabilitation, if applicant has a criminal record

• Any other evidence demonstrating that a favorable exercise of discretion is warranted

The Policy Memorandum did provide some exceptions:

• USCIS will continue to recognize “dual intent” nonimmigrant statuses – such as H-1B and L-1. Applicants for adjustment of status with those statuses should not be impacted by this Policy Memorandum based on a plain reading of the memorandum as long as they remain eligible. 
  • These applicants may still face scrutiny, though again it is too soon to tell how the new Policy Memorandum will be applied. 
• USCIS will also continue to allow adjustment of status for “immigrant categories where only adjustment of status provides a pathway to permanent resident status.” 
  • This includes any categories where approval of an adjustment of status application is non-discretionary by law, including: applications under the Cuban Adjustment Act, NACARA, and HRIFA; refugee/asylee adjustment under Section 209 of the INA, and; VAWA self-petitioners and applicants.

Applicants who have chosen to apply for adjustment of status can likely expect to face questions as to why they did not pursue Consular Processing. Those applicants can expect scrutiny on their decision and a possible denial unless they have shown extraordinary circumstances preventing them from Consular Processing. 

It is important to note that the Policy Memorandum safeguards the requirement for USCIS to include all positive and negative factors considered when writing a denial decision. Having these factors outlined in writing preserves the factors on the record for any future appeals – such as a Motion to Reconsider or a Motion to Reopen – and any future judicial review.  

Any pending adjustment of status applications and any newly filed applications should explicitly list out and document with evidence any positive and negative factors to be considered in their case. 

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We will continue to provide updates on our website as they become available. 

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Contact the Law Offices of James D. Eiss today to discuss any questions you may have related to a pending adjustment of status application.