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On May 21, 2026, U.S. Citizenship and Immigration Services (USCIS) issued Policy Memorandum PM-602-0199, claiming to “reaffirm” that adjustment of status (AOS) under Immigration and Nationality Act (INA) Section 245, 8 USC 1255, is a matter of “discretion and administrative grace” and an extraordinary form of relief, rather than a routine alternative to consular immigrant visa processing. The memorandum belies decades of administrative practice by USCIS and its predecessor, the Immigration and Naturalization Service, doing just that—treating adjustment of status as a routine alternative to consular immigrant visa processing—as well as decades of reducing the State Department’s footprint and budget for immigrant visa processing. USCIS has announced that the memorandum is effective immediately and applies to all pending and future Form I-485 filings, but this is expected to be challenged in court.
The statute has allowed adjustment of status since 1952. INA 245(a), 8 USC 1255(a), makes clear the discretionary nature of AOS:
The status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence… . (Emphasis added.)
Consistent with the clear language of the statute, a long line of court and administrative decisions have all characterized adjustment as discretionary. While last week’s USCIS memo highlights those cases that also describe adjustment of status as “extraordinary,” it fails to acknowledge that there is also a line of cases—like the recent U.S. Supreme Court decision it cites, Patel v. Garland—that do not use “extraordinary” to characterize the process. So what is new is not the law but the framing: USCIS is repositioning that body of authority as the operative lens through which I-485s should be adjudicated going forward. For employers and foreign nationals who have, for years, treated adjustment as the default mechanism for completing the green card process, this shift warrants careful attention.
Practical Outlook
The full practical impact of the memorandum remains to be seen, and several factors suggest its effect on day-to-day adjudication may be more measured than its framing alone might indicate.
First, policy memoranda of this scope frequently attract litigation, and challenges to elements of this guidance—or to category-specific implementing memoranda that follow—are foreseeable, especially given the governing statute’s explicit reference to regulations that may be prescribed, the long adjudicatory practice of the agency approving the vast majority of adjustment applications and the absence of any notice and comment period when introducing such a major change in the agency’s adjudicatory practice. Such challenges most likely will delay or narrow full implementation.
Second, AOS has, over many years, become the predominant pathway to lawful permanent residence for foreign nationals already present in the United States, and the consular processing infrastructure abroad would face significant capacity constraints if a meaningful share of that volume were redirected overseas. The State Department, which administers U.S. consular posts, may resist the shift in administrative burden from USCIS to its consular operations.
Third, the memorandum does not purport to change the statutory and regulatory eligibility framework for AOS, although litigants may argue that the memo, in effect, does in fact try to do that without complying with the notice and comment requirements of the Administrative Procedure Act. It remains to be seen if USCIS will target certain profiles, like those who have entered as tourists or who have let their nonimmigrant status lapse while the adjustment of status application is pending, when denying their applications as a matter of discretion.
That said, the memorandum does represent a meaningful shift in USCIS's stated approach to the adjustment of status process, and applicants with any complicating factors in their files should expect closer review.
What the Memorandum Does
The memorandum does not amend the AOS regulations or the application process for AOS. It does not alter the statutory eligibility framework under INA Section 245(a) or the bars under Section 245(c), and it preserves nondiscretionary adjustment categories (refugee/asylee adjustment under INA Section 209(a)(2), NACARA, HRIFA and certain military adjustments) untouched. What it does seek to change is to restrict officers’ favorable exercise of discretion in the final adjudication of the AOS application. Key directives include:
Adjustment Reframed as “Extraordinary,” Not Routine
The memo states that AOS was not designed to supersede the ordinary consular immigrant visa process.
Broader Adverse-Factor Analysis
Officers are directed to weigh any conduct following nonimmigrant admission or parole that is inconsistent with the purpose of that status—or with representations made to consular officers or DHS at the time of visa issuance, admission or parole.
Dual Intent Acknowledged, but Qualified
The memorandum confirms that applying for AOS is not inconsistent with maintaining lawful status in a dual-intent nonimmigrant category, such as H-1B or L-1. However, it expressly states that being in a dual-intent category is not, by itself, sufficient to warrant a favorable exercise of discretion.
Applicant Carries the Burden of Persuasion
Meeting the statutory eligibility criteria is the floor, not the ceiling. The absence of negative factors does not, on its own, satisfy the applicant's burden, and where adverse factors exist, applicants may need to offset them with “unusual or even outstanding equities” (Matter of Blas).
Reasoned Written Denials Required
Where AOS is denied as a discretionary matter, the denial notice must specifically address the positive and negative factors considered and explain why the negatives outweighed the positives.
Implications by Nonimmigrant Category
The risk profile under the new framework varies considerably depending on the underlying nonimmigrant classification.
H-1B and L-1
These are the principal dual-intent categories under U.S. immigration law, and the memorandum expressly preserves the use of AOS by individuals in dual-intent status. However, the caveat that dual intent alone is not sufficient to warrant favorable discretion introduces new exposure even for this population. H-1B and L-1 holders with any adverse factors—prior status gaps, late filings, unauthorized employment, discrepancies in prior representations to USCIS or consular officers—may face discretionary scrutiny that, in past practice, would not have been a meaningful concern at the AOS stage.
O-1
O-1 is not formally a dual-intent classification, though it has long been treated as permitting a form of “quasi-dual intent” in practice. Under the new framework, O-1 beneficiaries pursuing AOS should be prepared for closer review of timing, prior representations and consistency of their post-admission conduct with the O-1 purpose. Many O-1 holders move into H-1B status prior to or in parallel with the green card process, and this memorandum reinforces the strategic logic of doing so.
F-1 Students
F-1 is a single-intent classification, with nonimmigrant intent as a core eligibility requirement. The memorandum's emphasis on Congressional expectations that nonimmigrants depart when the purpose of admission has concluded creates real exposure for F-1 holders—including those on OPT or STEM OPT—who pursue AOS, particularly where there is any record suggesting longstanding immigrant intent.
TN, E-3 and Other Single-Intent Categories
TN and E-3 are similarly single-intent classifications, and beneficiaries in these categories who pursue AOS may face heightened discretionary scrutiny analogous to F-1 holders. As with all categories, individual equities will vary, and well-documented family ties, compliance history and employment record can substantially mitigate risk.
B-1/B-2, VWP and Parole
These populations face the most acute exposure under the memorandum's framing, given the agency's repeated emphasis on the expectation that nonimmigrants and parolees depart when the purpose of admission has been served. Parole-based AOS applicants, in particular, should expect heightened scrutiny.
Family-Based Applicants
The memo’s adverse-factor framework—overstays, unauthorized employment, failure to depart—may disproportionately affect marriage-based filers who, based on statutory and regulatory carveouts, are eligible for adjustment of status despite lapses in nonimmigrant status, having accrued unlawful presence or having worked without authorization.
What Employers Should Be Looking At
The memorandum invites a more granular look at the foreign national workforce and the green card pipeline. The following areas warrant attention—though not every action is needed in every case, and for most employees with clean compliance records, existing workflows remain substantially intact.
Do Not Rely on AOS-Based EADs and Advance Parole for Maintenance of Status
Don’t count on the availability of employment authorization documents (EADs) and advance parole (AP) travel documents during the AOS process.
If maintenance of nonimmigrant status during the adjustment process essentially becomes a prerequisite for AOS approval, AOS-based EADs and APs may become a dead letter. The current administration has consistently made clear its hostility toward all forms of parole and interim benefits like work authorization, and this memo is consistent with that sentiment.
Revisit the Relationship Between Nonimmigrant Classification and Green Card Timing
For employees expected to pursue permanent residence over the next several years, the underlying nonimmigrant category becomes a more strategically important variable than it has been in recent practice. Employees likely to spend extended periods in single-intent classifications before reaching AOS—F-1 OPT, TN, E-3, and to some extent O-1—may warrant earlier consideration of a transition into a dual-intent category. Cap planning and intracompany transferee strategy should be revisited with the AOS endpoint in mind.
Reassess Consular Processing As an Alternative—for a Narrower Subset of Cases
Consular processing is worth a fresh look for employees with international mobility, those who travel routinely or those whose family circumstances make a period abroad practicable. It carries its own well-known risks, including administrative processing under INA Section 221(g), visa refusals and timing unpredictability, and the issuance of immigrant visas has been frozen for months for nationals of dozens of countries.
Audit the Existing AOS Pipeline for Discretionary Risk, Not Just Eligibility
Identify pending and near-term I-485 cases with the features the memorandum invites officers to scrutinize: prior overstays, status gaps, unauthorized employment, inconsistencies in earlier representations to USCIS or consular officers and parole-based admissions. These features are familiar—what is changing is the weight USCIS will attach to them. Cases previously moving through on the strength of statutory eligibility may benefit from an individualized review of their discretionary posture before, rather than after, a USCIS request for evidence.
Build the I-485 Record Affirmatively, Not Defensively
The memorandum's emphasis on the applicant's burden of persuasion suggests filings will increasingly be evaluated not only for what is in them but for what is missing. Equities historically documented only if challenged—family ties in the United States, tax compliance, professional contributions, community involvement, charitable activity, moral character evidence—may warrant inclusion in the initial filing rather than being held in reserve.
Treat Status Compliance As a Substantive Issue, Not a Procedural One
Status compliance has long been handled, both internally at employers and in some practitioner workflows, as a procedural matter resolved at the time of extensions and amendments. The memorandum's directive that even minor or technical violations may bear on discretionary analysis raises the substantive stakes. How status issues—including those long since cured—are documented internally, communicated between HR, mobility teams and outside counsel, and surfaced in the I-485 record all warrant a fresh look.
Looking Ahead
USCIS has signaled that additional, category-specific guidance is forthcoming. Further memoranda directed at particular AOS pathways and applicant populations are expected, alongside the litigation referenced above. The interim period will likely be characterized by uncertainty, longer processing and an increase in requests for evidence—but not, in most cases, by categorical changes in approval rates for statutorily eligible applicants.
For employers with active green card programs, the immediate priority is identifying the cases that genuinely sit in the new risk zone, rather than overhauling strategy for the entire population.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.
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