Summary:
- Development: A new USCIS memorandum, USCIS PM-602-0199 (May 21, 2026) characterizes adjustment of status as discretionary ‘administrative grace,’ potentially limiting approvals without strong equities.
- Why it matters: May increase Requests for Evidence and discretionary denials, and likely to represent a shift toward consular processing- leading to longer delays and fewer review options for applicants
- Action point: Review pending I-485s for inconsistencies, gather evidence of positive equities (family, work, national interest), maintain status, and consult counsel for complex cases.
In an extreme change in existing policy, on May 21, 2026, U.S. Citizenship and Immigration Services (USCIS) issued Policy Memorandum PM-602-0199 on May 21, 2026 addressing the discretionary nature of adjustment of status under Section 245 of the Immigration and Nationality Act (INA). The memorandum states adjustment of status should generally be granted only in “extraordinary circumstances,” signaling a major change in how USCIS may adjudicate green card applications filed from within the United States.
The policy was issued without prior notice to the immigration community and may substantially alter the way USCIS officers evaluate Form I-485 applications moving forward.
What Is Changing?
For decades, eligible individuals physically present in the United States have generally been permitted to apply for permanent residence through adjustment of status by filing Form I-485, rather than departing the country for immigrant visa processing at a U.S. consulate abroad. Although applicants have always been required to satisfy statutory eligibility requirements and remain subject to discretionary review, adjustment of status has long been a standard and widely utilized immigration process.
The new memorandum appears to change USCIS’s approach to adjustment of status itself. USCIS now suggests that consular processing abroad may be viewed as the preferred or ordinary method of obtaining permanent residence, while adjustment of status within the United States may be treated as an extraordinary form of relief requiring additional justification.
Under the memorandum, USCIS officers are instructed to determine whether granting permanent residence from within the United States is warranted as a favorable exercise of discretion and whether such approval is in the “best interest of the United States.”
Increased Discretionary Review
The memorandum emphasizes that adjustment of status is not an entitlement, even when an applicant satisfies the legal eligibility requirements. Rather, USCIS characterizes adjustment of status as an exercise of “administrative grace.”
As part of this discretionary analysis, officers are instructed to review the totality of the circumstances and evaluate both favorable and unfavorable factors in each case. The memorandum specifically references factors such as:
- Immigration history, including:
- Prior fraud or misrepresentation in dealings with USCIS or another government agency;
- Prior immigration status violations;
- Failure to maintain lawful status; and
- Failure to depart the United States when required;
- Unauthorized employment;
- Criminal history;
- Public conduct;
- Inconsistencies in records (i.e., any immigration or consular application); and
- Positive discretionary factors, including:
- Family ties;
- Good moral character;
- Economic contributions/benefit; and
- National interest considerations.
The memorandum may also increase scrutiny of publicly available information and prior immigration records. USCIS officers increasingly review prior filings, travel records, employment history, company websites, LinkedIn profiles, social media, and other publicly accessible information during adjudications. Any inconsistencies may receive greater attention under a more discretionary review framework.
Concerns Regarding Consular Processing
One of the primary concerns arising from this policy shift is the practical reality of consular processing abroad. U.S. consulates worldwide already face significant backlogs and staffing shortages, resulting in lengthy visa appointment wait times and prolonged processing delays.
As a result, applicants who are required to process abroad may face extended periods outside the United States while awaiting adjudication of their immigrant visa applications. In addition, unlike many USCIS decisions, consular visa decisions are generally not subject to meaningful administrative appeal or judicial review.
What the Memorandum Does Not Do
Importantly, the memorandum does not change the law and does not eliminate adjustment of status as a legal pathway to permanent residence.
Section 245 of the INA continues to permit eligible individuals physically present in the United States including employment-based applicants, family-based applicants, and many others to apply for green cards through adjustment of status.
However, the memorandum appears to provide USCIS officers with broader discretion in adjudicating these applications, which likely means applicants should expect more extensive scrutiny and potentially increased Requests for Evidence (RFEs) or discretionary denials.
Applicants may therefore need to provide stronger supporting documentation demonstrating favorable equities and reasons why adjustment of status should be granted.
Unanswered Questions
The memorandum leaves several important questions unresolved.
For example:
- It remains unclear whether the policy will apply retroactively to I-485 applications already pending with USCIS;
- USCIS has not explained how officers will weigh positive versus negative factors in practice;
- No detailed operational guidance has yet been issued regarding implementation; and
- It is uncertain how consistently the policy will be applied across USCIS adjudicating offices.
Additional guidance, litigation, and policy clarification may follow in the coming months.
Recommended Next Steps
Given the increased discretionary focus reflected in the memorandum, employers and foreign nationals should consider taking proactive steps, including:
- Reviewing all pending and future adjustment filings for consistency and accuracy;
- Maintaining underlying nonimmigrant status whenever possible;
- Reviewing prior immigration filings, travel history, and employment records for discrepancies;
- Ensuring that LinkedIn profiles, company biographies, and other public-facing or social media professional information are consistent with immigration filings;
- Preparing comprehensive evidence demonstrating positive discretionary factors; and
- Consulting immigration counsel regarding case strategy, particularly in cases involving prior status issues or complex immigration histories.
At this stage, individuals should avoid making major immigration-related decisions based solely on the memorandum until further clarification and implementation guidance becomes available.
Leech Tishman has extensive experience advising clients on the complex and evolving U.S. immigration landscape. Our team is prepared to help clients evaluate the potential impact of this memorandum on pending or future immigration matters. For assistance or additional information, please contact Cristina Perez or Daniel E. Kelly, attorneys in our Immigration Practice Group.