USCIS Declares Adjustment of Status an “Extraordinary” Discretionary Benefit: What It Means for Applicants

By Litwin Smith • May 2026

On May 21, 2026, U.S. Citizenship and Immigration Services (USCIS) issued Policy Memorandum PM-602-0199, reminding its officers and the public that adjustment of status under Section 245 of the Immigration and Nationality Act (INA) is not a right. It is, in the agency’s own words, “a matter of discretion and administrative grace,” not designed to displace the ordinary path to a green card: consular processing from outside the United States.

The memorandum does not change the statutory eligibility requirements for adjustment of status. It does, however, signal how USCIS intends to exercise its discretion going forward—and applicants and their counsel should take note.

What is an Adjustment of Status?

Adjustment of status (often called “AOS” or filing Form I-485) allows a foreign national who is already physically present in the United States to apply for lawful permanent residence (a green card) without leaving the country to complete the process at a U.S. consulate abroad. For many applicants, this convenience is a significant practical benefit; it avoids international travel, family separation, and the delays associated with consular appointments.

However, the legal foundation for this benefit has always been discretionary. Section 245(a) of the INA provides that an alien’s status “may be adjusted by [the Secretary of Homeland Security], in his discretion”. If the applicant was inspected and admitted or paroled, is eligible for an immigrant visa, and is otherwise admissible. The word “may” performs significant legal work: meeting all eligibility requirements does not guarantee approval.

What the New Policy Memorandum Says

PM-602-0199 consolidates decades of case law and agency guidance into a clear and emphatic policy statement. The memorandum’s core themes are:

• Adjustment is “Extraordinary” Relief

The Board of Immigration Appeals (BIA) has long characterized adjustment of status as an “extraordinary” form of relief because it permits applicants to bypass the prescribed consular process. Federal courts across multiple circuits have consistently echoed this characterization. The memorandum reaffirms that USCIS officers must approach each application with that framework in mind.

• Absence of Adverse Factors Is Not Enough

One of the memorandum’s most practically significant points is this: the absence of negative factors does not, by itself, establish the “unusual or even outstanding equities” necessary to justify approval. An applicant who simply has no disqualifying history cannot rely on a clean record alone. Affirmative, positive equities must be presented and weighed.

• Congress Expects Departure and Consular Processing

The memorandum emphasizes that both the nonimmigrant admission system and the parole system were designed with a built-in expectation of departure. When a nonimmigrant visa holder or parolee overstays or otherwise fails to depart and instead seeks adjustment of status, that conduct is treated as an adverse factor that contravenes congressional intent. This is especially true when the alien could have pursued permanent residence through the ordinary consular process.

• Totality of Circumstances Review

Officers are instructed to weigh all relevant evidence in the totality of the circumstances, including: immigration history and compliance; any fraud or misrepresentation in prior dealings with USCIS or other government agencies; the purpose of the alien’s original admission or parole and whether subsequent conduct was consistent with that purpose; family ties; moral character; and any other factor bearing on suitability for permanent residence and whether approval is in the best interest of the United States.

• Dual Intent Categories Remain Recognized

The memorandum expressly acknowledges that applicants in nonimmigrant categories with dual intent, such as H-1B and L-1 visa holders, may simultaneously maintain lawful nonimmigrant status and pursue adjustment of status without inconsistency. However, it adds an important caveat: maintaining lawful dual-intent status is not, by itself, sufficient to warrant a favorable exercise of discretion.

• Denials Must Be in Writing and Fully Explained

When USCIS denies an adjustment application on discretionary grounds, the denial notice must include a written analysis that identifies the positive and negative factors considered and explains why the negative factors outweigh the positive. This transparency requirement is unchanged from the existing regulation, but the memorandum underscores it in the context of discretionary denials.

Who Is Affected?

This policy memorandum is most directly relevant to:

• Applicants who entered the United States as nonimmigrants (e.g., on F-1, B-1/B-2, J-1, H-1B, or other visa categories) and are seeking to adjust status without departing for consular processing;
• Parolees who were admitted temporarily and are seeking a green card without returning abroad;
• Applicants with immigration compliance issues in their history, including periods of overstay or unauthorized employment; and
• Applicants who lack strong positive equities beyond mere eligibility.

The memorandum is less likely to affect:

• Immediate relatives of U.S. citizens, who generally have the strongest equities and face fewer statutory bars;
• Applicants adjusting under non-discretionary provisions (such as certain refugee and asylee categories, VAWA self-petitioners, and specific special immigrant categories), where USCIS must approve if statutory criteria are met; and
• Applicants with compelling positive factors who have a well-documented record of compliance and community ties.

Practical Takeaways for Applicants

This memorandum should serve as a reminder that adjustment of status is not a bureaucratic formality; it is a privilege that must be earned through a demonstrated showing of merit. Some practical considerations:

Document your equities thoroughly. A strong adjustment package goes beyond completing the I-485. Supporting evidence of family ties, employment contributions, community involvement, length of residence, and any humanitarian circumstances should be organized and presented affirmatively.

Address any immigration compliance issues proactively. If you have periods of unlawful presence, prior visa violations, or other compliance concerns in your history, discuss them with your attorney before filing. In many cases, a candid explanation supported by evidence, or a legal argument as to why a particular period does not count against you, is far better than silence.

Consider whether consular processing is a viable alternative. For some applicants, especially those without significant equities to demonstrate, consular processing may actually produce a more predictable outcome. Your attorney can help you evaluate the trade-offs.

Dual intent visa holders should not take approval for granted. H-1B and L-1 holders who are maintaining lawful status should still present robust evidence of equity. Compliance with dual intent rules is necessary but not sufficient.

A Note on What This Memo Does Not Do

PM-602-0199 does not change the statutory eligibility requirements for adjustment of status. An applicant who does not meet the legal prerequisites, such as having been inspected and admitted or paroled, or being free from the categorical bars in INA § 245(c), remains ineligible regardless of equities. This memorandum operates at the discretion layer: it addresses how USCIS will exercise the judgment Congress has already given it, not whether an applicant is technically eligible to apply.

Additionally, while the memorandum is a significant policy statement, it is explicitly non-binding on individual applicants. USCIS personnel retain their adjudicatory discretion, and the memo cannot be used to create any legal right or benefit in removal proceedings or litigation.

What About Employees With Approved I-140s Waiting on Priority Dates?

One of the most pressing practical questions raised by this memorandum involves a very common fact pattern: a foreign national employee who is lawfully present in the United States on an H-1B, L-1, E, or O visa, has an approved immigrant petition (Form I-140 under EB-1, EB-2, or EB-3), and is simply waiting for their priority date to become current before filing for adjustment of status. Should these employees now expect to be required to undergo a consular process?

The short answer is no, but they should be better prepared to justify why they should not have to.

This Population Is Relatively Well-Positioned

The memorandum expressly acknowledges dual intent nonimmigrant categories. Employees maintaining lawful H-1B, L-1, or O-1 status with approved I-140s present a strong profile for a favorable exercise of discretion precisely because:

• They entered lawfully and have maintained their nonimmigrant status throughout their time in the United States;
• Their visa categories carry statutory or recognized dual intent—there is no inconsistency between holding nonimmigrant status and pursuing permanent residence through an employer-sponsored petition;
• They have an employer actively sponsoring their permanent residence through the prescribed process;
• Their approved I-140 demonstrates that they qualified for an employment-based immigrant classification under USCIS’s own adjudication; and
• Their priority date backlog is a government-created condition—not a personal failure to pursue the ordinary immigration process.

The memorandum’s harshest language targets applicants who overstayed, violated the terms of their status, or used humanitarian parole as a backdoor to permanent residence. That is a materially different fact pattern from a compliant, employer-sponsored nonimmigrant who has been lawfully waiting in line for years.

Where the Risk Is Real

The memorandum’s statement that maintaining dual intent status is “not sufficient, on its own” to warrant a favorable exercise of discretion is the sentence that demands attention. USCIS is signaling that it expects affirmative equities beyond mere compliance. For this population, those equities need to be documented—not assumed.

E visa holders (E-1 and E-2 treaty traders and investors, and E-3 Australian professionals) are in a somewhat more complex position. Unlike H-1B and L-1 visas, E visa categories are not statutory dual intent categories in the same sense. An E visa holder who has maintained long-term U.S. residence while an I-140 matures may face heightened scrutiny regarding the consistency of their nonimmigrant intent. This is a factor that should be addressed proactively in any adjustment package.

Consular Processing Delays as a Legitimate Equity Factor

U.S. consular processing timelines are not theoretical. Depending on the consulate, scheduling an immigrant visa interview can take two to three years—and at certain high-volume posts, such as Mumbai, Chennai, or Manila, delays have historically stretched even longer. For an employer-sponsored beneficiary who has been lawfully present and productive in the United States, the requirement to depart for a multi-year consular queue is not a mere formality. It represents:

• Extended or indefinite separation from U.S.-based family members, including U.S. citizen or lawful permanent resident spouses and children;
• Loss of experienced, specialized personnel to the employer at a time when their contributions are ongoing and material;
• Significant disruption to business operations, client relationships, and projects that depend on the employee’s continued presence;
• Exposure to unpredictable administrative processing holds, interview delays, and consular backlogs beyond either party’s control; and
• In some cases, potential triggering of unlawful presence bars or other inadmissibility grounds upon departure.

These are genuine humanitarian and business hardship factors that belong in the adjustment of status record. An employer letter documenting these consequences is not a manufactured justification; it is honest, material evidence of real-world harm that USCIS is required to weigh in the totality of the circumstances.

What Employers and Employees Should Do Now

We recommend that employer clients with affected employees begin building adjustment of status equity packages now, before priority dates become current, so that when the I-485 is filed, the record is complete and compelling. That package should include:

• A letter from the employer documenting the employee’s role and contributions, the business disruption that consular processing would cause, the employer’s investment in the employee’s lawful status, and the employer’s support for adjustment of status as the appropriate pathway;
• A comprehensive immigration compliance history, including all Form I-94 records, visa stamps, pay stubs, and tax returns demonstrating continuous lawful status;
• A personal statement from the employee addressing family ties, length of lawful residence, community involvement, and any other humanitarian equities; and
• Where relevant, documentation of consular processing timelines and wait times at the specific post where the employee would be required to appear, to establish that the delay is not merely speculative.

The bottom line for this population is not “prepare to consular process.” It is “prepare a stronger adjustment of status application than you might have filed before this memorandum was issued.” The legal pathway remains open; the evidentiary burden has increased.

Contact Us

If you have questions about a pending or planned adjustment of status application in light of this new guidance, our firm is available to help you assess your case and build the strongest possible record.

This article is provided for general informational purposes only and does not constitute legal advice. Immigration law is complex and fact-specific. Please consult a qualified immigration attorney regarding your individual circumstances.