On May 21, 2026, U.S. Citizenship and Immigration Services (USCIS) 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.” The memo does not change the law (adjustment of status has always been discretionary) but it sends a clear signal about how USCIS intends to exercise that discretion going forward.

As an overview, adjustment of status (AOS) is the process by which a foreign national already present in the United States applies to become a lawful permanent resident (green card holder) without leaving the country to attend a consular interview abroad. It is a procedural advantage that allows individuals to remain employed, maintain their lives in the U.S., and avoid the risks and delays associated with consular processing. Learn more about the difference between adjustment of status and consular processing here: https://brownimmigrationlaw.com/immigrant-services/.

Under INA § 245(a), however, AOS has always been discretionary. USCIS is not required to approve an application simply because an individual meets the technical eligibility requirements. PM-602-0199 reaffirms this point, citing Board of Immigration Appeals (BIA) decisions and federal court opinions, including the Supreme Court’s 2022 decision in Patel v. Garland, for the proposition that AOS is an “extraordinary” form of relief and an “act of administrative grace.” The memo instructs USCIS officers to approach every AOS adjudication with this framework front and center.

The memo makes explicit what USCIS officers are to look for beyond bare eligibility: the noncitizen’s full immigration history, compliance with prior nonimmigrant status, any unauthorized employment, violations of admission conditions, and whether the applicant could have reasonably pursued an immigrant visa through consular processing instead. Officers are directed to consider these factors in the totality of the circumstances. A clean, straightforward petition with no red flags remains on solid ground. Any petition with a complicated immigration history faces meaningfully higher scrutiny.

We highlight the following from the memo:

• Overstays and Status Violations Are Heightened Adverse Factors: The memo singles out noncitizens who fail to depart as required when their nonimmigrant status or parole expires. Officers are explicitly told that this failure is “highly relevant” to the discretionary analysis, “particularly” when the failure reflects an intent to reside permanently in the United States and the individual could have pursued a green card through the standard consular process. In practical terms: if your employee overstayed a visa before or during the green card process, this memo makes their AOS adjudication more vulnerable.

• Parole-Based AOS Is Under Pressure: The memo devotes considerable attention to parolees, emphasizing that parole is a temporary, case-by-case mechanism and that parolees are generally expected to depart when the purpose of their parole has been served. This is a signal directed at recipients of humanitarian parole programs, particularly the CHNV (Cuba, Haiti, Nicaragua, Venezuela) programs, many of whom have filed AOS applications. USCIS is signaling it views those applications skeptically under the new discretionary framework.

• Dual Intent Nonimmigrant Status Is Preserved, but Not Sufficient: The memo specifically carves out nonimmigrant categories with dual intent, most notably H-1B and L-1 visa holders. Maintaining lawful status in a dual intent category is not inconsistent with filing for AOS. This is an important protection for employer-sponsored beneficiaries. That said, the memo adds a notable caveat: maintaining lawful dual intent status “is not sufficient, on its own, to warrant a favorable exercise of discretion.” Officers are expected to look beyond the applicant’s current status at the broader record.

• Discretionary Denials Require Written Analysis: When USCIS denies an AOS application on discretionary grounds, officers are required to issue a written denial notice that identifies the specific positive and negative factors considered and explains why the negatives outweigh the positives. A conclusory or unsupported discretionary denial creates a record that may support a challenge under the Administrative Procedure Act (APA) in federal district court. We will be monitoring how this requirement is implemented in practice.

• “Unusual or Outstanding Equities”: The memo also cites Matter of Blas, a 1974 BIA decision that USCIS is now formally elevating as governing policy. The memo states that adverse factors, like overstays, status violations, or the circumvention of consular processing, must be offset by “unusual or even outstanding equities.” Critically, the memo adds that the absence of adverse factors is not sufficient to demonstrate such equities. In other words, “no bad facts” is no longer a winning argument on its own. Petitioners need affirmative equities: strong U.S. family ties, a long period of lawful residence, significant professional contributions, community involvement, or other compelling circumstances.

Importantly, this memo does not change eligibility requirements for any green card category. EB-1A, EB-1B, EB-2 NIW, PERM-based EB-2 and EB-3, and other employment-based pathways remain available. What changes is the lens through which USCIS reviews the AOS application itself.

Generally, this memo is part of a broader pattern of the current administration using existing statutory and regulatory authority to tighten immigration outcomes without rulemaking. By recharacterizing long-standing discretionary authority as an extraordinary power to be exercised with “utmost caution,” USCIS is signaling that it intends to deny more AOS applications on discretionary grounds, even where the underlying visa petition was approved. We anticipate litigation on the horizon.

We are closely monitoring how USCIS officers implement this guidance in practice and are prepared to advise clients on how to best position their cases under the new framework. If you have questions about how PM-602-0199 affects a pending or upcoming filing, please contact your BIL attorney.