USCIS Policy Memo PM-602-0199: Adjustment of Status Under a New Discretionary Framework

On May 21, 2026, USCIS released internal policy memorandum PM-602-0199, officially repositioning Adjustment of Status (AOS) as an extraordinary discretionary benefit — described by the agency itself as an act of administrative grace. In practical terms, adjudication officers have been instructed to abandon the near-automatic treatment that many applications had been receiving and to apply a far more subjective analysis, even when the applicant meets all statutory eligibility criteria. The change directly affects those planning to obtain a green card from within U.S. territory without returning to their home country for consular processing.

What changes in practice

Technically, no law has been amended. The Immigration and Nationality Act (INA) continues to authorize adjustment of status under sections 245 and related provisions. What changed is the USCIS internal guidance on how officers should exercise their discretionary authority when approving or denying Form I-485.

Before the memorandum, meeting the formal requirements — an approved underlying petition, a current priority date on the Visa Bulletin, maintained status, and admissibility — was generally treated as sufficient for approval, absent obvious problems. Under PM-602-0199, technical compliance becomes only the threshold requirement. From there, the officer must form a judgment about whether that individual, at that moment, deserves to receive a green card while inside the United States rather than returning to their home consulate.

The totality of the circumstances doctrine

The memorandum directs that each case be analyzed through the lens of the totality of circumstances. Officers must weigh positive and negative factors on a balance before deciding, and no single factor guarantees automatic approval.

Typical negative factors

• Criminal history, even for minor infractions
• Periods of unlawful presence after visa expiration
• Unauthorized employment at any point
• Use of a visa for a purpose other than stated — for example, entering as a tourist with a pre-existing intent to adjust status
• Inconsistencies between statements in interviews, forms, and tax records
• Use or potential use of public benefits eligible for analysis under the public charge rule

Positive factors or equities

• Clean record of compliance with the conditions of each visa held
• Current federal tax returns filed with the IRS, including years spent in temporary status
• Established family ties, particularly with spouses, children, and parents who are already lawful permanent residents or U.S. citizens
• Demonstrable hardship if the applicant is required to leave the country
• Documented community involvement: volunteering, participation in churches, professional associations, and clubs
• Assets acquired on U.S. soil, such as real property and formal investments
• Specialized education completed at recognized institutions
• Stable employment history, especially in fields considered to be of national interest

Who should expect greater scrutiny

The memorandum explicitly identifies visa categories that will face more rigorous review when holders attempt to adjust status. These are the so-called single-intent visas — designed for a specific and temporary purpose:

• F-1, student visas that carry an implied intent to return to the home country upon completion of studies
• B-1/B-2, short-term business and tourism visas
• TN, for professionals covered by the USMCA agreement under a specific employment relationship

The memorandum is direct about the institutional expectation: students, temporary workers, and tourists come to the United States for a defined period and a specific purpose, and the system was designed for them to return once that period ends. Using a temporary stay as the first step toward a green card is no longer viewed as a natural pathway.

For F-1 holders planning a quick transition to EB-2, EB-3, or EB-2 NIW after graduation, a significant increase in Requests for Evidence questioning the original intent at the time of the student visa application is expected. For B-1/B-2 holders, any adjustment of status filed within a short period after entry will carry a heightened presumption of intent fraud, with risk of denial on grounds of preconceived intent.

Impact on H-1B and L-1 dual-intent visas

H-1B and L-1 holders — categories that have always permitted dual intent, meaning temporary presence compatible with the parallel pursuit of lawful permanent residence — are not barred from adjusting status. The memorandum confirms this explicitly.

The sensitive point is different: maintaining valid status and following all the rules is no longer, on its own, a sufficient positive factor. Previously, an H-1B professional with five years of impeccable status maintenance and an approved I-140 petition had near-certain I-485 approval once a priority date became current. Now, the same profile will be evaluated against the full set of equities, and the officer may conclude that individual circumstances suggest the application would be more appropriately processed through a consulate.

Public statements attributed to USCIS spokesperson Zach Kahler reinforce this interpretation: applicants whose cases demonstrate clear economic benefit or alignment with national interest tend to keep their AOS trajectory, while others may be directed to process abroad based on individualized circumstances.

Tension with suspended consular processing

The repositioning of consular processing as the preferred route creates a significant practical tension. The State Department maintains suspension or severe restrictions on immigrant visa processing for nationals of more than seventy-five countries listed as high risk for public benefit use. For those applicants, returning to their home consulate is not a realistic alternative — it means, in practice, an indefinite wait with no interview scheduling in sight.

Immigration attorneys have already announced their intention to challenge the memorandum in court, arguing that it effectively displaces the statutory framework of AOS without legislative change, in conflict with the original design of the INA. Litigation in the coming weeks will determine whether the internal guidance takes full effect or whether injunctive relief limits its application.

Strategies for those with a pending or planned I-485

Applicants with already-filed petitions do not face automatic denial. The memorandum applies to the merits analysis of each case, but pending proceedings remain active and should be maintained. Withdrawing the petition at this point to reapply through a consulate is a decision that must be weighed on a case-by-case basis — in many situations, especially for nationals of countries with suspended consular processing, withdrawal means losing one’s place in line with no guarantee of resumption.

For those who have not yet filed, the focus must be on actively building and documenting equities. This involves:

• Gathering federal income tax returns for all years in status, with proof of payment
• Documenting a stable employment history with employer letters, contracts, and pay stubs
• Proving family ties to U.S. citizens or lawful permanent residents through certificates and evidence of cohabitation
• Presenting potential hardship in the event of forced departure, including impact on a spouse, children enrolled in U.S. schools, and ongoing medical treatment
• Documenting community involvement: activities in recognized organizations, volunteer work, and cultural or scientific contributions
• Building a coherent narrative between the declared intent at the time of the original visa and the trajectory leading to the adjustment of status

Categories with heightened RFE risk

Certain transitions now require special attention to the case narrative:

• F-1 students who completed Optional Practical Training and are seeking employer sponsorship for EB-2 or EB-3 within a short timeframe
• B-1/B-2 tourists who marry a U.S. citizen during their visit and file concurrent I-130 and I-485 petitions
• TN professionals transitioning to EB-2 or EB-3 while maintaining their status
• Immediate relatives of U.S. citizens who entered on any temporary visa and adjust status within fewer than ninety days of admission

In all of these cases, officers will have enhanced tools to examine original intent, and the burden of demonstrating good faith falls on the applicant.

An evolving landscape

USCIS has signaled that it may issue category-specific AOS guidance in the coming weeks. Until then, the practical interpretation of the memorandum will depend on how each service center and each individual officer calibrates the new discretionary doctrine. Variation across regional offices is expected, and consolidated patterns will take months to emerge.

For the international applicant, the strategic takeaway is clear: meeting technical requirements has become the floor, not the ceiling. A petition must demonstrate affirmative merit, a solid personal context, and alignment with the U.S. interest in keeping that individual in the country. Generic applications lacking a robust narrative and broad documentation of equities will face elevated risk of extended RFE or discretionary denial.

Victoria Harper

Meet the author