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 took effect immediately and purportedly applies to all pending and future Form I-485 applications for adjustment of status.
The next day, on May 22, USCIS issued a press release quoting a USCIS spokesperson as stating: “From now on, an alien who is in the U.S. temporarily and wants a Green Card must return to their home country to apply, except in extraordinary circumstances.”
Shortly thereafter, headlines such as “Green Card Seekers Must Leave U.S. to Apply, Trump Administration Says” and “Trump administration to make foreigners leave US to apply for green cards” began running in national and international newspapers.
By the end of the day on May 22, the same USCIS spokesperson emailed news outlets to state: “While we work to operationalize this, people who present applications that provide an economic benefit or otherwise are in the national interest will likely be able to continue on their current path while others may be asked to apply abroad depending on individualized circumstances.”
Regardless of whether the lack of clarity is a feature or a bug, starting with the memorandum itself is key to helping practitioners, companies, and individuals understand what has changed and what has not.
What the Memorandum Actually Says
The memo does not amend INA § 245. It does not promulgate a new regulation. It does not narrow statutory eligibility for adjustment of status.
It directs USCIS officers to apply the discretionary component of § 245(a) with materially heightened scrutiny, treating adjustment as an “extraordinary” form of relief that should not be used to “supersede the regular consular visa-issuing process.”
The legal foundation the memo invokes is longstanding. Matter of Blas, 15 I&N Dec. 626 (BIA 1974), characterized adjustment as a matter of “discretion and administrative grace.” Patel v. Garland, 596 U.S. 328 (2022), reaffirmed the discretionary character of the benefit. The memo cites both.
Although adjustment has always been discretionary in theory, since § 245(a) states that adjustment “may” be granted, it has been largely procedural in practice. The shift PM-602-0199 indicates that USCIS intends to start exercising that discretion to deny adjustments in certain circumstances.
Several specific provisions warrant closer attention:
Dual intent is preserved
The memo expressly acknowledges that applying for adjustment of status is “not inconsistent with simultaneously maintaining nonimmigrant status in a category with dual intent.” Footnote 20 (page 5) expands upon this point, however, stating: “maintaining lawful status in a dual intent nonimmigrant category is not sufficient, on its own, to warrant a favorable exercise of discretion.” Some commentators have suggested that this footnote may indicate that even individuals in dual-intent categories may not adjust status. A more likely interpretation is that USCIS is cautioning that, although adjustments remain available for individuals in dual-intent categories, they will not be automatically granted, as adverse factors could still warrant denial in certain cases. Thus, complying with H-1B or L-1 obligations is preserved as a positive factor, but it does not by itself satisfy the discretionary analysis.
The “extraordinary equities” standard
Citing Matter of Blas, the memo directs officers to look for “unusual or even outstanding equities” to offset adverse discretionary factors. As such, the memo suggests that adjustments are unlikely when adverse factors exist because they heighten the burden of overcoming them. Additionally, even when adverse factors are not present, applicants should be prepared to affirmatively present positive equities that justify granting relief inside the United States rather than requiring consular processing. The May 22 clarification regarding “economic benefits” indicates that petitions should highlight economic benefits, regardless of whether adverse factors are present.
Category-specific guidance is foreshadowed
The memo states that “USCIS may provide policy guidance specific to certain adjustment of status categories or discrete populations of aliens to aid officers in identifying those applications that may or may not warrant this act of grace and exception to the regular consular process.” Although such forthcoming guidance may provide additional information, USCIS has provided no timeline for its release. Consequently, those affected by this memorandum should follow it for the time being.
Consular processing availability
The memo states that officers should conduct this discretionary analysis “[w]here consular processing is available to an alien based on the immigrant category in which he or she seeks adjustment of status.” This statement suggests that this analysis may not strictly apply when consular processing is unavailable; however, in practice, all individuals should be prepared for heightened scrutiny regardless of whether consular processing is available.
“Highly Relevant” factors
In outlining adverse factors, the memo states that “[a]n alien’s failure to comply with the conditions of their nonimmigrant admission or parole and an alien’s failure to depart as expected are highly relevant” to the discretionary analysis. This statement indicates that adjustments are less likely to be granted to individuals who have overstayed or violated the conditions of their admission.
Maintaining underlying status
The memo claims that individuals who hold nonimmigrant status and request an adjustment of status “usually” do so “accompanied by their violation of our immigration laws.” In a footnote appended to this statement, the memo states that such individuals “usually fail to maintain their nonimmigrant or parole status while their adjustment of status applications are pending.” This reasoning highlights that USCIS may increasingly take the position that individuals must maintain an underlying status when pursuing an adjustment of status.
Denial notices must articulate reasoning
When denying on discretionary grounds, the memo notes that officers must issue notices that include “an analysis containing the positive and negative factors considered, along with an explanation of why the negative factors outweigh the positive.” This procedural requirement is a meaningful preservation tool for AAO appeals and federal court litigation.
What the Press Release Added and Then Walked Back
Despite the memo’s more limited posture, the Friday, May 22 press release was categorical: “aliens seeking adjustment of status must do so through consular processing via the Department of State outside of the country.”
Temporary visa holders, the press release said, “must return to their home country to apply, except in extraordinary circumstances.”
The press release does not control adjudication. The memo does. But the press release’s framing reached the public and the press first, and the categorical version is the one most clients and businesses have now read in the news.
The same-day clarification narrowed the framing. According to the spokesperson’s emailed statement Friday afternoon, “[w]hile we work to operationalize this, people who present applications that provide an economic benefit or otherwise are in the national interest will likely be able to continue on their current path while others may be asked to apply abroad depending on individualized circumstances.”
Neither the press release nor this Friday’s clarification amended the memo. Although the clarification appears to walk back the press release’s categorical statements, it leaves multiple open questions. It did not define “economic benefit” or “national interest.” And it states that even if a person meets these criteria, they “will likely be able to continue on their current path.”
The clarification does, however, indicate the framing USCIS will likely use to distinguish applications it intends to process from those it intends to redirect. Cases that fit most cleanly within the “economic benefit” or “national interest” framing are likely to benefit from this framing: most likely EB-1A, EB-2 NIW, EB-1B outstanding professors and researchers, EB-5, and PERM-based employment categories where the underlying labor certification reflects a Department of Labor finding that the role serves U.S. labor market needs. Cases that do not fit that framing should expect a meaningfully harder argument.
The gap between the press release and the clarification is the litigable space. For practitioners advising clients in the next several weeks, the central strategic question is whether a given application can be presented within the framework of the clarification preserved.
Who Is Comparatively Positioned and Who Is Exposed
Reading the memo and the clarification together makes the better-positioned categories more apparent.
Employment-based applicants with continuous lawful status in dual-intent categories, such as H-1B and L-1, and clean compliance histories, whose underlying I-140 rests on a contribution-based theory, are well-positioned within the clarification’s framing. The discretionary analysis under the memo substantially overlaps with the evidentiary record already built for the I-140 in cases where the petition itself argued contribution to the United States.
EB-2 NIW and EB-1A applicants have the cleanest fit with the clarification’s framing. The substantive arguments that support the I-140 (substantial merit and national importance under Dhanasar or sustained national or international acclaim under the EB-1A standard) are the same arguments that map onto the discretionary analysis.
For these applicants, the additional work created by the memo is largely a packaging exercise: presenting the I-140 record again, framed for discretionary review, as part of the I-485 filing.
Although the memo is silent on EB-5, EB-5 investor petitioners should be well positioned given the petition’s structural character. The pathway is statutory, the eligibility criteria are objective, and the evidentiary record is built around quantifiable economic contribution. Additionally, the EB-5 Reform and Integrity Act of 2022 enabled concurrent filing of the I-526E and I-485.
Immediate relatives of U.S. citizens benefit from statutory protection against several § 245(c) bars. The discretionary analysis under PM-602-0199, however, applies to immediate relatives. The memo’s central theory, that adjusting instead of departing for consular processing is an adverse factor, describes the typical immediate-relative applicant who entered on a B-2, F-1, or H-1B and subsequently married a U.S. citizen. The exposure for this group may shift from the statutory stage to the discretionary one, even where Congress expressly exempted immediate relatives from several of the § 245(c) bars.
The more exposed categories are also foreseeable. Marriage-based AOS applications with any history of overstay or status violation face a meaningfully more difficult discretionary analysis under the “highly relevant” language in the memo. Family-based filings without a strong record of equity-building will require supplementation. F-1 students transitioning to employer-sponsored adjustments without strong national-interest framing have less to draw on. And applicants from countries subject to the parallel January 2026 restrictions (discussed below) face stacking exposure across both the consular and AOS pathways.
What remains unsettled and should not be overcommitted to: whether pending I-485 applications filed before May 21 are governed by the prior posture or the new one (the memo does not say, and some practitioners read it as applying to all pending applications); how “extraordinary circumstances,” “economic benefit,” and “national interest” will be defined in adjudication; and whether the memo survives APA challenge (the structural vulnerability parallels the one that produced Mukherji v. Miller, No. 4:24-CV-3170 (D. Neb. Jan. 28, 2026), on the EB-1A “final merits determination” framework).
PM-602-0199 in Context
This memorandum lands within a coordinated set of agency actions that have, since 2025, reshaped the practical pathway to permanent residency from both directions, both inside the United States and abroad. Treating the memo in isolation understates its operational effect.
The State Department’s January 14 Immigrant Visa Pause
Effective January 21, 2026, the Department of State placed immigrant visa issuance into administrative processing under INA § 221(g) for nationals of 75 countries, citing a non-statutory presumption of public-charge ineligibility under INA § 212(a)(4). Consular interviews continue, but visa issuance does not. The pause is indefinite, with no published criteria for review or removal. For nationals of those 75 countries, a list that includes substantial source countries for employment-based immigration, the consular pathway is now an indefinite bottleneck. It is unclear whether USCIS will take this pause into account when implementing its heightened discretionary review. The memo’s reference to the analysis applying “[w]here consular processing is available” suggests that applicants from one of these 75 countries may not be subject to the analysis (but in practice likely will be).
USCIS Policy Memorandum PM-602-0194 (January 1, 2026)
Operating in parallel with the State Department pause, USCIS placed a hold on the final adjudication of all pending benefit applications for individuals from the countries covered by Presidential Proclamation 10998, expanding an earlier December 2025 hold. The hold reaches benefit applications generally, including adjustments, changes of status, extensions of stay, OPT, and naturalization, and is paired with a mandatory re-review of benefits previously approved on or after January 20, 2021, for nationals of the affected countries. A narrow set of exemptions exists, but the operating posture is paused adjudication for most applicants. Although USCIS has suffered repeated defeats in litigation regarding this hold, it currently remains in effect for most applicants.
The January actions and the May memo combine to create a closed loop for affected nationals. Consular processing is administratively paused. USCIS benefit adjudication is administratively paused. And under PM-602-0199, the residual discretionary pathway now requires affirmative extraordinary equities to access if any adverse factors exist.
The September 2025 H-1B Fee Proclamation
The administration’s $100,000 H-1B fee proclamation materially increased costs and reduced employers’ willingness to sponsor new H-1B workers from abroad. Although the number of H-1B registrations still exceeded the statutory cap this year, the number dropped from 470,342 in 2025 to 343,981 in 2026.
The May 2026 Visa Bulletin Final Action Dates shift
USCIS reverted in May 2026 to using the Final Action Dates chart rather than the Dates for Filing chart for employment-based AOS filings, after using the more favorable Dates for Filing chart in prior months. The April 2026 window for EB-2 and EB-3 Rest of World applicants to file under the Dates for Filing chart closed. For applicants who could file in April but not in May, the AOS pathway is functionally closed, independent of PM-602-0199, until priority dates advance.
The pattern across these actions is consistent. Each action is procedurally narrow: a memo, a press release, a bulletin choice, a fee proclamation, an adjudication hold. When combined, however, they reconstruct the practical operation of the U.S. immigration benefit system to substantially constrict pathways for legal immigration.
PM-602-0199 is the latest in this series of restrictions. The May 22 clarification did not change that direction. However, it identified the individuals most likely to be permitted to navigate it: those who can demonstrate economic benefit or national interest.
Practical Implications
For Applicants with Pending I-485 Applications
The exposure level depends on category and individual equities. File reviews are appropriate now. Anything in the record that establishes positive equities, such as sustained employment, U.S. tax compliance, professional contribution, community ties, and family circumstances, should be inventoried. Counsel should be prepared to supplement the record in response to RFEs that may begin to issue under the new discretionary standard. Pending cases should not be assumed to be protected by their filing date.
For Applicants Preparing to File
The strategic calculus has changed. For EB-2 NIW and EB-1A cases, the discretionary analysis under PM-602-0199 substantially overlaps with the evidentiary record being built for the underlying I-140. The AOS package itself should be treated as an opportunity to reassert the national importance or extraordinary contribution narrative in the discretionary record, not just as a procedural transmittal.
For Corporate Counsel with Foreign-National Employees
PERM labor certification, properly documented, remains a meaningful predicate. The PERM record itself is evidence that the role serves U.S. labor market needs, which aligns with the clarification’s economic-benefit framing. Internal documentation practices for I-485 supporting evidence should be updated with the discretionary analysis in mind.
For Consular Processing Planning
For applicants with overstays considering departing, the 3- and 10-year unlawful presence bars under INA § 212(a)(9)(B)(i) should be considered against the increased likelihood of the adjustment being denied. For applicants from the 75 affected countries, departure now also means entering the indefinite State Department pause.
For Litigation Posture
PM-602-0199 will likely face APA challenges on grounds substantially similar to those that succeeded in Mukherji v. Miller. The structural vulnerability is that this is a substantive policy shift adopted through guidance rather than notice-and-comment rulemaking. Practitioners filing AOS cases under the memo should preserve issues for review, including objections to extra-regulatory requirements, vague standards, and substantive policy shifts adopted without notice and comment, as well as arguments based on the statutory structure of § 245.
Conclusion
PM-602-0199 does not amend § 245, which has always included the discretionary “may” standard. But it has restructured the practical operation of the statute through a coordinated series of procedural actions: the State Department pause, the USCIS adjudication hold, the visa bulletin chart selection, the H-1B fee proclamation, and now the discretionary reframing of adjustment of status.
PM-602-0199 is the most consequential of those actions for applicants already in the United States, especially for those with overstays or violations, and it lands in a context where each of the alternative pathways has also been narrowed.
The May 22 clarification reveals the likely practical implementation. Applications presenting clear economic benefit or national interest will likely proceed along a path similar to the prior one. Applications that do not, or that present adverse factors, will face a meaningfully harder argument, or a redirection to consular processing into systems that, for affected nationals, remain frozen.
What This Means For Your Immigration Case
The May 21, 2026 USCIS policy memorandum has created new questions about the future of adjustment of status applications, but it does not mean that adjustment of status is “dead.” What it does mean is that applicants, employers, and families must be more strategic than ever when planning their immigration journey.
Because USCIS policies can change quickly and the consequences of a denied application can be significant, it is critical to evaluate your eligibility, timing, and filing strategy before moving forward.
If you are considering adjustment of status, responding to a USCIS request, or exploring alternative immigration options, the experienced team at Robinson Immigration Law can help you understand how these policy changes may affect your case and develop a strategy tailored to your goals.
Request an Evaluation with Robinson Immigration Law today to discuss your options and protect your path toward permanent residence.
