USCIS’s New Adjustment of Status Memo: What Green Card Applicants in the U.S. Need to Know
Updated May 26, 2026
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 has generated significant concern among applicants with pending or planned Form I-485 filings, and for good reason — it signals a shift in how USCIS officers are expected to approach discretionary decisions in green card adjudications.
That said, it is equally important not to overreact. The memorandum does not eliminate adjustment of status, does not create new statutory eligibility requirements, and does not state that USCIS will approve adjustment only in “extraordinary circumstances.” What it does do is instruct officers to look harder at discretionary factors — and that distinction matters enormously, especially for applicants whose facts are mixed or complex.
What the Memo Actually Says
The memo restates a long-standing legal principle: adjustment of status under INA section 245 is a discretionary benefit, not an automatic right. Even when an applicant satisfies every statutory eligibility requirement, USCIS can still deny the application as a matter of discretion. The agency views consular immigrant visa processing abroad as the “ordinary” route to permanent residence and frames adjustment as an exception — an act of “administrative grace” that allows someone to obtain a green card without leaving the United States.
USCIS instructs officers to weigh the totality of the circumstances, including both negative and positive factors, and to consider whether an applicant’s use of adjustment of status amounts to bypassing the ordinary consular process. Critically, the memo states that the absence of adverse factors, by itself, is not enough — applicants may need to show “unusual or outstanding equities” to tip the balance in their favor.
What Remains Unknown: Pending Cases and Future Guidance
One of the most pressing questions after this memo is how it will apply to cases already pending before USCIS. The memo does not explicitly distinguish between applications filed before its issuance and those filed afterward. On its face, it appears to apply immediately, so we can expect the USCIS to issue Requests for Evidence (RFEs) or Notice of Intent to Deny (NOIDs) in pending cases seeking more information about discretionary factors.
For applicants with a pending I-485, the current best practice is:
- Do not panic and do not withdraw. There is no immediate action required in most pending cases.
- Maintain your underlying nonimmigrant status as carefully as possible while the case is pending.
- Consult with counsel to identify any discretionary vulnerabilities in your record before USCIS raises them.
- Be prepared to respond to a discretionary RFE or NOID with organized documentation of positive equities.
USCIS has also signaled that it may issue category-specific guidance in the future targeting particular adjustment pathways or populations. That means the picture may become clearer — or more complicated — in the weeks and months ahead. Litigation challenging the memo is also widely anticipated, and courts may ultimately narrow or block some of its application.
Are H-1B and L-1 Workers Safe?
This is the question we hear most often from employment-based clients, and the honest answer is: H-1B and L-1 workers are comparatively better positioned than most, but they are not insulated from heightened scrutiny.
The memo explicitly acknowledges that filing for adjustment of status is not inconsistent with maintaining lawful status in a dual-intent nonimmigrant category — which includes H-1B and L-1 status. This is an important acknowledgment, as dual intent has always been a recognized feature of these visa categories, meaning that holding an H-1B or L-1 and simultaneously pursuing permanent residence has never been considered improper immigrant intent.
However, the memo goes on to state that merely maintaining lawful dual-intent status is not sufficient, on its own, to guarantee a favorable exercise of discretion. USCIS can still weigh other factors — status gaps, prior violations, employment history, representations made at prior visa applications — and reach a negative discretionary conclusion even for an applicant in valid H-1B or L-1 status.
For H-1B and L-1 applicants with a clean compliance record — consistent maintenance of status, authorized employment only, no prior misrepresentations, and strong positive equities — the practical risk may be relatively lower. But the days of treating a valid H-1B or L-1 status as a near-automatic safety net for the I-485 appear to be over, at least for now.
Non-Dual-Intent Nonimmigrant Status: A Higher Bar
For applicants who entered or currently hold a non-dual-intent nonimmigrant status — including F-1, TN, O-1, B-1/B-2, E-2, and others — the analysis is more complicated and the risks under this memo are meaningfully higher.
Non-dual-intent categories are premised on the applicant’s lack of preconceived immigrant intent at the time of admission. The memo specifically instructs officers to examine whether conduct after admission was inconsistent with the purpose of that admission — and the decision to pursue permanent residence from within the United States, without departing to consular process, is precisely the kind of conduct USCIS is now signaling it will scrutinize.
This does not mean adjustment of status is automatically unavailable to people in these categories. Many F-1 students, TN professionals, and O-1 visa holders successfully adjust status, and the statute still permits it in appropriate cases. What it does mean is that the case strategy, the timing of filing, the immigration history, the maintenance of status, and the consistency of representations across prior visa applications need to be reviewed very carefully. Filing without that analysis may create avoidable risks.
Who Faces the Most Scrutiny
Based on the memo and commentary from other immigration colleagues, we believe that the following groups are most likely to face heightened scrutiny:
- Applicants with any immigration violations overstays, unauthorized employment, failure to maintain nonimmigrant status, prior misrepresentations, or conduct inconsistent with the terms of admission.
- Non-dual-intent visa holders: particularly F-1 students, TN professionals, B-1/B-2 visitors, and others where immigrant intent is analyzed at entry.
- Parole-based applicants: including humanitarian parole populations where USCIS may be looking more closely at whether adjustment was always the intended outcome.
- Applicants with a gap between the purpose of their admission and their path to permanent residence: for example, someone who entered briefly on a tourist visa and quickly transitioned into adjustment proceedings.
Building a Strong Case: Positive Factors Matter
The memo emphasizes that adjudicators must weigh all relevant factors — not only adverse ones. This means that building and presenting a genuine record of positive equities is now more important than ever. Depending on the specific case, favorable factors may include:
- Stable employment in the United States: a history of lawful, authorized work, a skilled profession, and contributions to the U.S. workforce and economy.
- Family ties: U.S. citizen or permanent resident spouses, children, or other close relatives, and the hardship that separation or departure would cause.
- Tax compliance and civic contributions: a documented history of filing U.S. tax returns, paying taxes, and participating in the community.
- Good moral character: consistency in dealings with government agencies, truthfulness in prior applications, and no criminal or fraud history.
- Documented reasons why consular processing is not appropriate: in some cases, an applicant may face significant obstacles to leaving the United States to consular process — including potential inadmissibility grounds, safety or security concerns in the home country, disruption to U.S. employment or family, or prolonged separation. Where consular processing is theoretically available, USCIS will likely want to understand why the applicant chose to pursue adjustment instead, and that explanation should be documented clearly in the record.
What This Means in Practice
The memo is a genuine policy signal – it is a significant development that changes the posture of adjustment adjudications, even if it does not change the underlying statute. Most of us agree that more RFEs, more NOIDs, and more detailed discretionary analysis in denials are likely on the horizon, particularly for cases with any complexity in the immigration history.
At the same time, this is not the end of adjustment of status. Well-prepared applications from applicants with strong equities, clean compliance records, and documented reasons for pursuing adjustment are still approvable. The key is understanding where your case sits in the current adjudicative environment — and making sure the record speaks for itself before USCIS raises questions.
The Bottom Line: Individualized Analysis Is Essential
There is no single answer to what this memo means for any given applicant. The right strategy depends on visa category, status history, compliance record, family and employment ties, travel considerations, potential inadmissibility issues, and whether consular processing is a realistic and safe option for that individual.
If you have a pending I-485, are planning to file, or are evaluating whether adjustment of status or consular processing makes more sense for your situation, now is the right time to seek individualized legal advice.
Purcell Law APC assists clients with adjustment of status strategy, pre-filing risk analysis, and complex mmigration matters. We monitor developments in USCIS policy closely and can help you evaluate how this memo affects your specific case — before USCIS raises the questions for you.
📩 Schedule a consultation with us by calling +1 858 252 1373 or emailing info@purcell, law, or by clicking here.
This blog post is for general informational purposes only and does not constitute legal advice. Immigration law is highly fact-specific. Please consult a licensed immigration attorney to evaluate your individual situation.