USCIS PM-602-0199: Adjustment of Status Is Now Discretionary

On May 21, 2026, 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 instructs USCIS officers that adjustment of status (AOS) under INA § 245 is not an entitlement — it is discretionary relief that requires affirmative justification. Even applicants who satisfy every statutory eligibility requirement are not guaranteed approval.

The USCIS news release headline — "USCIS Will Grant Adjustment of Status Only in Extraordinary Circumstances" — framed the change in terms more sweeping than the memo's own text. Understanding the gap between that headline and the memo's actual language is the first task for attorneys advising any client with a pending or planned I-485.

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What PM-602-0199 Actually Says

The memo's full title signals its core argument: AOS is characterized as "extraordinary relief" that lets applicants bypass the ordinary pathway of consular processing abroad. The underlying premise is that consular processing — applying for an immigrant visa at a U.S. consulate overseas — is the standard route. Adjusting status within the United States is the exception.

The memo quotes from the applicable statute. Under INA § 245, the Attorney General (now the Secretary of Homeland Security) "may adjust" status — the permissive "may" has always made AOS discretionary on its face. The memo's practical impact is directing USCIS officers to actually exercise that discretion, rather than treating eligibility alone as sufficient for approval.

Direct quotes from PM-602-0199:

• "AOS under INA § 245 is an act of administrative grace, not an entitlement."
• "aliens are generally expected to pursue an immigrant visa… from outside the United States if they wish to reside permanently in this country."
• "Maintaining lawful status in a dual-intent nonimmigrant category (such as H-1B or L-1) is not, by itself, enough to warrant a favorable exercise of discretion."
• "The absence of adverse factors, by itself, does not demonstrate such unusual or outstanding equities."

That last sentence is the operational shift. Under prior practice, applicants without negative factors — no overstays, no fraud, lawful entry — could expect approval as a matter of course. The memo explicitly closes that path: clean record alone is no longer sufficient.

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The Discretionary Framework: What Officers Must Weigh

The memo requires officers to conduct a "totality of the circumstances" analysis before approving or denying an I-485. There is no defined checklist, no bright-line threshold, and no automatic category of automatic approval outside explicitly protected humanitarian pathways.

Negative factors the memo identifies:

1. Immigration law violations or breach of status conditions
2. Fraud or false statements to any government agency
3. Conduct inconsistent with the purpose of the nonimmigrant visa issued
4. Remaining in the United States rather than departing and pursuing a consular immigrant visa
5. Evidence of preconceived intent to remain permanently at the time of admission

Positive factors officers must consider:

1. Family ties — particularly U.S. citizen or LPR family members in the United States
2. Tax compliance and employment history
3. Community involvement and moral character
4. Length of U.S. residence and integration
5. Field contributions and professional achievements (directly relevant for employment-based petitioners)
6. Humanitarian factors

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Who Is Most Affected

Risk is not uniform across visa categories. The memo's language points most clearly at applicants whose original admission was premised on temporary, nonimmigrant intent — those who entered the United States for a defined, temporary purpose and seek to remain permanently without departing.

For detailed analysis by category, see the companion articles:

• H-1B and L-1 Employment Visa Holders
• EB-1A and O-1 Extraordinary Ability Applicants
• F-1 Students and OPT Workers
• Humanitarian and CHNV Parolees
• J-1 and J-2 Exchange Visitors
• TPS Holders
• B-2 Tourists and ESTA Visitors

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What the Memo Does Not Do

Several points of confusion circulated in initial commentary that practitioners should clarify with clients:

The memo does not eliminate AOS. INA § 245 remains unchanged. USCIS cannot eliminate AOS by policy memo — doing so would require Congressional action. The memo changes how officers exercise discretion within the existing statute, not the statute itself.

The news release headline is not the legal standard. The phrase "only in extraordinary circumstances" appears in the USCIS news release and in statements by USCIS spokesman Zach Kahler — not in the memo text itself. The memo's standard is "unusual or outstanding equities" — a historically recognized discretionary formulation, not a new legal test.

The memo does not define "extraordinary circumstances." Because the headline phrase has no definition in the memo, practitioners cannot rely on it as a threshold. The operative standard remains the totality-of-circumstances balancing analysis described above.

Dual intent visa holders are not exempted — but they are not the target. Immigration attorneys at T&S Law and EIG Law noted that nonimmigrants with employment-authorized statuses (H-1B, L-1, O-1, TN) are unlikely to be the primary targets of heightened scrutiny under this memo. The memo's negative factor list most directly implicates visitors, students, and individuals who violated status or remained unlawfully.

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The Consular Processing Problem

The memo frames consular processing as the ordinary, preferred pathway. USCIS Spokesman Kahler stated: "Following the law allows the majority of these cases to be handled by the State Department at U.S. consular offices abroad."

That framing assumes consular processing is a viable alternative. For a significant population of applicants, it is not:

Unlawful presence bars. Under INA § 212(a)(9)(B), individuals who accrued more than 180 days of unlawful presence and then departed face a 3-year bar on reentry. Those who accrued more than one year face a 10-year bar. For applicants with even brief status lapses — common among students who filed late OPT renewals or workers whose H-1B transfer was not timely — consular processing means triggering bars they cannot waive.

Consulate backlogs. State Department consular capacity has been reduced significantly in recent years, and many posts face appointment backlogs measured in months. Consular processing for family-based or employment-based immigrant visas, particularly in high-demand countries, can add years to an already backlogged queue.

Interview waivers ended. Many applicants who previously qualified for consular interview waivers now face in-person requirements. The practical consequence is that the "ordinary pathway" the memo envisions may not function on any reasonable timeline.

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Patel v. Garland and the Absence of Judicial Review

The 2022 Supreme Court decision in Patel v. Garland, 596 U.S. 328 (2022) significantly limits the remedies available to applicants adversely affected by this memo. The Court held that 8 U.S.C. § 1252(a)(2)(B)(i) strips federal courts of jurisdiction to review "any judgment regarding the granting of relief" under INA § 245 — including factual determinations made by USCIS officers.

In practical terms: if a USCIS officer concludes that an applicant's positive equities do not outweigh negative factors, that factual determination is not reviewable in federal district court. Applicants denied under PM-602-0199's discretionary framework have limited options — administrative appeal to the AAO or Board of Immigration Appeals in removal proceedings.

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Diversity Visa: A Separate Hold

Concurrent with PM-602-0199, USCIS issued a separate instruction directing officers to hold and review all pending I-485 applications filed by diversity visa lottery immigrants. This action appears on the USCIS Policy Memoranda page but is distinct from PM-602-0199.

DV applicants seeking adjustment of status should be advised that their cases are not simply subject to heightened discretionary scrutiny — they are affirmatively on hold pending USCIS review. Practitioners representing DV-based I-485 applicants should monitor for further specific guidance.

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What Practitioners Must Do Now

For pending I-485 applicants:

1. Do not withdraw. Withdrawal eliminates existing work authorization (EAD), advance parole, and procedural protections. Even in a more difficult adjudicatory environment, maintaining the pending application preserves benefits that would be lost upon withdrawal.

2. Supplement the administrative record immediately. Identify and document the applicant's positive equities: U.S. citizen or LPR family, tax returns, employment continuity, community ties, professional awards and recognition, charitable contributions, and any other evidence that speaks to the totality-of-circumstances analysis.

3. Document lawful status maintenance comprehensively. Gather I-94 records, USCIS extension approvals, and any other evidence showing uninterrupted lawful status. Any status gap — however brief — should be documented and addressed, not left for USCIS to discover.

4. Assess consular processing realistically. For clients with clean status histories and no unlawful presence concerns, note that consular processing remains an option but evaluate State Department backlogs and current interview wait times before recommending it.

5. Treat the I-485 as requiring a positive affirmative case. The prior approach — file the I-485 with statutory eligibility documents and wait — is insufficient under the new discretionary framework. The application should present a record of positive equities as if making a case for discretionary relief, because that is now what it is.

For prospective I-485 filers:

6. File promptly if eligible. Especially for employment-based applicants with current priority dates and lawful H-1B, L-1, or O-1 status, delaying filing creates no benefit and defers acquisition of AC21 portability protections under 8 CFR 245.25.

7. Evaluate the applicant's risk profile under the memo's negative factor list. Clients with prior status violations, unauthorized work, or significant travel gaps should receive individualized analysis before filing.

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Implications for Attorneys

PM-602-0199 changes the nature of the I-485 practice in a way that is likely to be durable regardless of whether courts ultimately constrain its implementation. The memo signals an adjudicatory culture shift: USCIS now approaches AOS as a privilege to be earned, not a process to be completed.

For attorneys representing EB-1A and O-1 clients, see the companion article How PM-602-0199 Affects EB-1A and O-1 Extraordinary Ability Applicants for specific analysis of how extraordinary ability evidence intersects with the new discretionary standard.

For attorneys representing H-1B and L-1 corporate clients, see How PM-602-0199 Affects H-1B and L-1 Employment Visa Holders for employer implications and practitioner guidance on employment-based I-485 strategy.

The USCIS Policy Manual, Volume 7 governs AOS adjudication generally. Monitor for updates to Volume 7 that may implement PM-602-0199 in operative policy chapters — those updates, when issued, will carry more precise instructions for specific visa categories than the current memo.

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