Adjustment of Status as Discretion and Administrative Grace — What the May 21, 2026 Memo Changes, and What It Does Not
By Anant Rathee, Esq. — Rathee Law Firm P.C., New York
On May 21, 2026, U.S. Citizenship and Immigration Services issued Policy Memorandum PM-602-0199. The memo's title characterizes adjustment of status as a "Matter of Discretion and Administrative Grace, and an Extraordinary Relief that Permits Applicants to Dispense with the Ordinary Consular Visa Process," and the memo body repeatedly describes adjustment as an "extraordinary" form of relief. The accompanying agency press release went further, stating that USCIS will grant adjustment "only in extraordinary circumstances." The press-release framing is more categorical than the memo body itself, and counsel should attend to that distinction in adjudications and in litigation.
The memo is an interpretive policy document. It does not amend the INA, add statutory bars, or change Form I-485 eligibility. What it does is instruct USCIS officers to treat adjustment as a discretionary privilege that applicants must affirmatively justify with equities sufficient to offset adverse factors. The legal authorities the memo cites — Matter of Blas, Patel v. Garland, and related precedent — are not new. The signaling is.
This article distinguishes throughout between what the memo instructs (settled), what USCIS is likely to do operationally (predicted), and what controlling law actually permits (litigation-dependent). It walks through every adjustment category implicated by the memo, addresses the litigation outlook, and provides a quick-reference exposure table. A consolidated I-485 packet checklist appears in Appendix A.
The following table is an editorial triage tool, not a legal classification. Exposure ratings reflect the memo's framing and predicted adjudication patterns. Specific cases require individualized analysis. Where the table identifies a category as expressly enumerated in the memo's footnote 24, the citation comes directly from the memo; other categorizations reflect the author's reading of the memo's broader logic.
| Adjustment Category | Exposure | Immediate Practitioner Action |
|---|---|---|
| Refugee adjustment under INA § 209(a)(2) (expressly enumerated in memo footnote 24) | Low | Quote footnote 24 of the memo back to USCIS if discretionary framing appears. Confine response to statutory eligibility. |
| NACARA Title II; HRIFA § 902; NDAA FY2020 § 7611 (all expressly enumerated in memo footnote 24) | Low | Push back firmly if USCIS imports discretionary framing. Confine response to statutory eligibility. |
| Asylee adjustment under INA § 209(b); Cuban Adjustment Act of 1966 (not enumerated in footnote 24 but widely understood as non-discretionary upon statutory eligibility) | Low | Argue that the controlling statute leaves no discretion once eligibility is established. Cite the memo's own acknowledgment that some adjustment provisions are non-discretionary. |
| VAWA self-petitioners | Low-Med | Statutory § 245(c) exemption (acknowledged in memo footnote 12). Adjustment remains discretionary; build hardship and good moral character into the I-485 packet. |
| U and T adjusters under § 245(m) and § 245(l) | Low-Med | Residual discretionary component to which the memo applies. Develop cooperation record (U) or trafficking and country-conditions record (T). |
| Immediate relatives of U.S. citizens with clean status history | Medium | Eligibility strong; build bona fide marriage record and address any overstay, work issues, or timing concerns affirmatively. |
| H-1B, L-1, O-1, E-3 (dual intent or dual-intent-tolerant) | Medium | Dual-intent shield protects against failure-to-depart logic but not the totality analysis. Document status maintenance, taxes, employer contribution. |
| EB-1, EB-2, EB-3, EB-4 with clean record | Medium | Treat I-485 as discretionary advocacy submission, not compliance filing. Cover memo plus substantive employer letter. |
| EB-5 investor adjusters | Medium | Document source of funds, at-risk capital, lawful underlying status. EB-5 narrative supplies strong equities. |
| Diversity Visa adjusters | Med-High | Fiscal-year deadline does not eliminate discretionary risk. Evaluate consular alternative for selectees with status gaps. |
| F2A, F2B, F3, F4 family preference | Med-High | Address § 245(c) bar matrix in parallel with discretionary equities. § 245(i) cases require especially strong equities. |
| K-1 fiancé(e) and K-3 adjusters after timely marriage | Medium | Failure-to-depart logic does not naturally apply. Watch for K-1 marriage-to-petitioner-only rule under § 245(d). |
| TPS holders (where § 245(a) admission established) | Medium | Develop country conditions and length-of-TPS-residence as "unusual equities." |
| B-1/B-2 visitors adjusting through marriage | High | Document organic relationship timeline. For very recent entries, evaluate consular as safer path. Memorialize informed consent. |
| F-1 students adjusting through marriage or employment | High | Document academic completion, SEVIS compliance, lawful CPT/OPT, and organic origin of the adjustment basis. |
| TN, H-2, J-1, P, R, and other single-intent adjusters | High | Most exposed dual-intent gap. Consider concurrent or post-I-140 filing strategy and consular alternative. J-1 § 212(e) requires separate analysis. |
| VWP entrants adjusting as immediate relatives | High | File quickly; document organic relationship development; for very recent entries consider whether consular is safer. |
| § 212(d)(5)(A) parolees (humanitarian, public benefit, advance parole returnees) | High | Develop humanitarian or public-benefit basis, country conditions, and continued compliance with parole conditions. |
| § 245(i) or § 245(k) applicants with prior status violations | High | Build a cancellation-of-removal-style record of equities. The conduct that triggered § 245(i)/(k) is itself the targeted conduct. |
| Applicants with prior fraud, misrepresentation, or immigration violations (even waived) | High | Lead with waiver if applicable. Build rehabilitation narrative. Treat discretionary analysis as separate from inadmissibility analysis. |
PM-602-0199 rests on INA § 103(a)(3) and INA § 245(a). Its central legal proposition is that adjustment of status "may be adjusted by [the Secretary], in his discretion," and that this discretion has long been characterized as a "matter of grace, not right." The memo cites Matter of Blas, 15 I&N Dec. 626 (BIA 1974; A.G. 1976), aff'd, 556 F.2d 586 (9th Cir. 1977); Patel v. Garland, 596 U.S. 328 (2022); Kucana v. Holder, 558 U.S. 233 (2010); Elkins v. Moreno, 435 U.S. 647 (1978); and Santos-Zacaria v. Garland, 598 U.S. 411 (2023).
These citations support the unremarkable proposition that adjustment under § 245(a) is discretionary. What is new is the operational instruction that adjudicators should now treat the discretionary phase as a presumption against grant — framing adjustment as "extraordinary" and requiring applicants to overcome that presumption with "unusual or even outstanding equities."
This distinction matters because it constrains what USCIS can do and what counsel must contest. The memo itself is a policy memorandum subject to the standard caveat that it "may not be relied upon to create any right or benefit, substantive or procedural." It does not, by its terms, modify any statute, regulation, or precedent decision.
Three corollaries follow:
USCIS officers retain the discretion they had before the memo. They are not bound to deny applications that the memo would prefer they deny; the discretion runs in both directions.
Statutorily non-discretionary categories are not subject to the memo's framing as a matter of administrative law. The memo's footnote 24 expressly enumerates four such authorities: NACARA Title II (Pub. L. 105-100), INA § 209(a)(2) refugee adjustment, HRIFA § 902 (Pub. L. 105-277, Div. A), and § 7611 of the FY2020 National Defense Authorization Act (Pub. L. 116-92). Asylee adjustment under § 209(b) and Cuban Adjustment Act adjustment are widely understood as non-discretionary upon statutory eligibility but are not specifically enumerated in footnote 24. Counsel should be precise about which authority supplies the carve-out in any given matter.
Reliance interests created by the agency's prior practice are themselves a constraint. Under Department of Homeland Security v. Regents of the University of California, 591 U.S. 1 (2020), an agency that changes course must consider the reliance interests its prior policy created. The memo does not address those interests, which is a litigation vulnerability discussed in Part III.
Stripped of citation, the memo gives officers five practical instructions:
Treat adjustment as extraordinary, not ordinary. Consular processing is positioned as the default; adjustment as the exception.
Weigh failure to depart heavily. When a nonimmigrant or parolee fails to leave the United States after the purpose of admission ends, that failure is "highly relevant" to the discretionary analysis.
Require equities to offset adverse factors. Quoting Matter of Blas at 641, the memo requires adverse factors to be "offset…by a showing of unusual or even outstanding equities." The absence of negatives is not enough.
Apply a totality-of-the-circumstances test. Officers must consider immigration history, prior violations, fraud or misrepresentation, conduct inconsistent with nonimmigrant purpose, family ties, and moral character — then explicitly weigh positives against negatives in any denial.
Acknowledge — but limit — dual intent. The memo concedes that applying for adjustment is not inconsistent with maintaining dual-intent status, but cautions in footnote 20 that dual-intent maintenance is "not sufficient, on its own, to warrant a favorable exercise of discretion."
The following predictions are inferential, based on observed agency behavior following analogous memoranda (the 2017 NTA Memo and its successors, the 2018 Unlawful Presence Memo for F, J, and M nonimmigrants, the 2019 Public Charge Rule rollout, and the 2025 PM-602-0192 case freeze). Practitioners should weight them accordingly.
The scenarios below are organized in descending order of discretionary exposure, mirroring the quick-reference table. Each scenario identifies why the memo applies (or does not), what factors USCIS is being told to weigh, and the specific equities counsel should marshal. A consolidated packet checklist appears in Appendix A to avoid repetition.
These applicants are eligible to adjust despite overstay, unauthorized employment, or status violations because Congress provided structural carve-outs. The memo does not eliminate the carve-outs, but the conduct that makes them necessary is precisely the conduct the memo identifies as adverse.
Likely adverse factors: overstay, unauthorized employment, failure to depart, conduct inconsistent with original nonimmigrant purpose, and the choice to remain in the United States to pursue adjustment.
Equities to develop: U.S. citizen or LPR family members and the hardship they would suffer; length of residence; tax compliance; community ties; absence of criminal history; and a narrative explanation for why the applicant did not depart. Treat the filing the way one would treat a cancellation-of-removal record.
This is the classic intent-at-entry fact pattern. The visitor was admitted to depart; she did not depart; she now seeks permanent residence. The memo's language about "conduct…inconsistent with the purpose of that nonimmigrant status" maps directly.
Important caveat: the 90-day rule of the Foreign Affairs Manual (9 FAM 302.9-4(B)(3)) governs consular misrepresentation analysis and is not binding on USCIS. Adjustment counsel should not concede that the FAM standard applies to USCIS, but should expect the memo's discretionary framework to do similar work even where misrepresentation is not found under INA § 212(a)(6)(C)(i).
Equities to develop: organic timeline of the relationship documented through contemporaneous evidence (texts, photographs, joint travel, prior visits); commingled finances; affidavits from family and disinterested witnesses; clean immigration history otherwise.
Strategic alternative: For very recent entrants with thin relationship documentation, consular processing through I-130 and DS-260 may be safer despite the longer timeline. Counsel should evaluate the § 212(a)(9)(B) bar exposure, I-601A availability, and family-separation considerations — and document the informed-consent discussion (Appendix B).
An F-1 admission is for full-time study. Where the student marries during F-1 or transitions through OPT/STEM OPT to employment-based adjustment, the memo invites scrutiny of whether the student's true purpose shifted from study to permanent residence.
Likely adverse factors: SEVIS termination history; enrollment gaps; pre- or post-completion OPT with the eventual I-140 sponsor in suggestive patterns; CPT use that USCIS has historically flagged.
Equities to develop: completed academic credentials; continuous SEVIS compliance; lawful CPT/OPT; honest narrative explanation of how the relationship or employment opportunity arose.
This is the most commonly asked-about scenario. Footnote 20 of the memo creates a clear two-step rule. Step one: dual intent substantially reduces the force of the memo's failure-to-depart logic, because Congress (or, for O-1, the agency's longstanding regulatory practice) designed the category to permit immigrant intent. Step two: dual intent does not, by itself, satisfy the discretionary inquiry; officers are directed to consider the totality of the record. Counsel should not treat dual intent as eliminating discretionary risk — the memo is explicit that it does not.
The strategic decision — adjust in the United States rather than depart and consular process — remains correct for almost every H-1B holder. Adjustment preserves the work authorization and travel benefits that flow from the pending I-485 (the I-765 EAD and I-131 advance parole), keeps the family together, and avoids the unlawful presence trap that would otherwise attach to departure. The memo does not change that calculus.
What the memo changes is the construction of the packet. The factors most likely to draw adverse weight are status gaps (including periods bridged by AC21 portability where documentation is thin), any unauthorized work, F-1-to-H-1B bridge issues (Cap-Gap, STEM OPT with the eventual sponsor), prior § 221(g) or 214(b) refusals, tax-compliance gaps, criminal history (including dismissed or sealed cases that the I-485 still requires to be disclosed), and any prior misrepresentation, however minor.
Where the H-1B holder is also the spouse of a U.S. citizen or LPR, the discretionary equities are materially stronger; U.S. citizen children strengthen the record further. The employment-based and family-based equities are not mutually exclusive, and counsel should document the family ties as positive discretionary factors in the employment-based adjudication.
L-1 is expressly dual-intent under INA § 214(h). O-1 has long been treated as dual-intent-tolerant in agency practice, with 8 C.F.R. § 214.2(o)(13) providing that an O nonimmigrant's pursuit of permanent residence is not, by itself, a basis to deny extension. E-3 is not a textbook dual-intent category but has historically been treated as dual-intent-tolerant in adjudication. For each, the principal differentiator is the depth of the supporting record, which counsel should build to the standard of the H-1B template.
E-2 is not a dual-intent category. An E-2 investor who files an I-485 places the discretionary analysis in tension with the E-2's nonimmigrant-intent requirement. For E-2 investors whose enterprise can support a DS-260 timeline, consular processing may be a more conservative path under the memo.
These categories carry no dual-intent doctrine, and the memo's failure-to-depart logic applies in full force. Filing an I-485 is itself the strongest evidence that nonimmigrant intent has shifted. The conventional advice has been to file the I-485 only after I-140 approval and to expect difficulty on nonimmigrant extensions; the memo sharpens that advice.
J-1 § 212(e) note: J-1 exchange visitors subject to the two-year foreign residence requirement are statutorily ineligible to adjust until § 212(e) is satisfied or waived. Where a waiver is granted, it does not insulate the discretionary analysis — particularly for No Objection Statement waivers from skill-list countries.
The memo positions parolees alongside nonimmigrants as the second principal group subject to heightened discretionary scrutiny. This applies to humanitarian parolees (Ukrainian, Afghan, Venezuelan, Cuban, Haitian, Nicaraguan, and other programmatic parolees, to the extent the underlying programs remain in effect), significant-public-benefit parolees including international entrepreneur parolees, advance parole returnees whose original entry was without inspection, and port-of-entry parolees.
Equities to develop: the underlying humanitarian or public-benefit basis for parole; country conditions making return unsafe or impractical; full compliance with parole conditions; and, for entrepreneur parolees, evidence of continued qualifying business activity.
VAWA self-petitioners enjoy statutory exemption from most § 245(c) bars (acknowledged in the memo's footnote 12). VAWA adjustment is still discretionary under § 245(a), so the memo's framework applies to the discretionary phase — but the VAWA narrative already speaks directly to the "unusual or outstanding equities" the memo demands. Counsel should build the equities into the I-485 packet rather than relying on the I-360 record alone.
U adjustment under § 245(m) and T adjustment under § 245(l) operate under specialized statutory schemes. The residual discretionary component remains, and the memo applies to it. For U adjusters, the cooperation-with-law-enforcement record and any rehabilitation evidence are central. For T adjusters, the trafficking narrative and country-conditions evidence supply strong equities.
This is the cleanest carve-out the memo offers, but it requires careful framing. The memo's footnote 24 expressly enumerates four statutorily non-discretionary authorities, one of which is INA § 209(a)(2) refugee adjustment. The memo provides that for such categories, "if the applicant satisfies all statutory and regulatory eligibility requirements, USCIS must approve the application without considering whether the applicant warrants a favorable exercise of discretion." Refugee adjustment is therefore directly and expressly outside the memo's discretionary framework.
Asylee adjustment under § 209(b) is not specifically enumerated in footnote 24. However, the statutory framework for asylee adjustment is structured similarly to refugee adjustment and has long been treated as non-discretionary upon satisfaction of eligibility, subject to a residual discretionary component in the inadmissibility waiver context. Counsel arguing the carve-out for an asylee adjuster should rely on the statutory structure of § 209(b) and the agency's longstanding practice, rather than asserting that footnote 24 itself enumerates asylee adjustment.
Counsel should not allow USCIS to import PM-602-0199 reasoning into a refugee adjudication, and should resist its application to asylee adjudication on the same statutory grounds. The model RFE/NOID response language in Appendix C is calibrated for both scenarios.
Footnote 24 of the memo expressly enumerates three other statutorily non-discretionary authorities: NACARA Title II, HRIFA § 902, and § 7611 of the FY2020 NDAA. For these categories, the memo provides that USCIS "must approve the application" upon satisfaction of statutory and regulatory eligibility, without considering favorable exercise of discretion.
The Cuban Adjustment Act of 1966 (Pub. L. 89-732) is not specifically enumerated in footnote 24. It is widely treated as non-discretionary upon satisfaction of statutory eligibility, but counsel arguing the carve-out for a CAA adjuster should rely on the statutory structure of the CAA itself rather than asserting that the memo enumerates the category.
DV adjustment is discretionary, and the fiscal-year deadline is unforgiving. The memo creates a new layer of risk on top of the existing time pressure. For DV selectees with clean records and family or dual-intent cushions, adjustment remains attractive; for selectees with status gaps, the deadline does not eliminate the discretionary risk, and counsel may need to weigh consular processing as the safer path.
Immediate relatives enjoy statutory exemptions from most § 245(c) bars and from priority-date constraints. The memo does not strip these advantages but does layer a discretionary analysis on top. An IR applicant with overstay or unauthorized work must still pass the discretionary lens, and the bar that lens applies is higher than before.
Family-preference adjusters carry the full § 245(c) bar matrix on top of the discretionary framework. Most adjusters in these categories with status issues rely on § 245(i) grandfathering or another carve-out, and the conduct that makes the carve-out necessary is the targeted conduct.
Employment-based applicants in dual-intent-tolerant categories generally enter the discretionary phase with cleaner records. Principal exposure points are aging-in dependents whose status compliance differs from the principal's; Cap-Gap and STEM OPT periods; AC21 portability documentation; § 245(k) reliance; and prior § 221(g) refusals or revocations.
EB-5 adjusters file from a range of underlying statuses. USCIS has long treated EB-5 concurrent filing as compatible with prior nonimmigrant status, and the memo does not change concurrent filing as a procedural matter. Exposure arises principally where the underlying nonimmigrant status is misaligned with adjustment intent — the E-2 investor filing EB-5 concurrently is the classic example.
K-1 entrants are admitted for marriage to the U.S. citizen petitioner within 90 days. Adjustment after timely marriage to the petitioner is the statutorily contemplated path, and the memo's failure-to-depart logic does not naturally apply. K-1 entrants who marry someone other than the petitioner remain barred under § 245(d). K-1 entrants whose adjustment is filed long after entry or who developed adverse factors during the K-1 period may face the discretionary lens.
Section 245(c) lists statutory bars to § 245(a) adjustment with limited exceptions. The detailed bar matrix is set out in Appendix D for reference. Where the case turns on one of the structural carve-outs (immediate-relative status, § 245(i), § 245(k), VAWA), the memo's discretionary framework runs in parallel with the statutory analysis, and counsel must argue both.
VWP entrants are statutorily barred from § 245(a) adjustment except as immediate relatives of U.S. citizens. For those who qualify, the discretionary lens is particularly sharp: the VWP entrant agreed at entry to a 90-day stay and a waiver of removal contest rights. Counsel should file quickly, document organic relationship development, and address the timing of marriage relative to the original ESTA entry.
The memo directs officers to weigh "violations of our immigration laws or the conditions of any immigration status held, current or previous instances of fraud or false testimony." Approved I-601 or I-601A waivers do not eliminate the discretionary penalty the memo invites; they shift the inquiry from inadmissibility to discretion. Counsel should lead with the waiver, build a rehabilitation narrative, and treat the discretionary analysis as a separate adjudication from the inadmissibility analysis.
Advance parole permits a pending I-485 applicant to depart and return without abandoning the application. The memo does not change this rule, but for an applicant whose original entry was without inspection (and who was paroled in upon return), the memo's parole discussion applies. For applicants who used advance parole for extended trips or non-emergent reasons, the discretionary analysis may scrutinize the trips.
TPS adjustment turns on whether the TPS holder is considered "admitted" for § 245(a) purposes — an issue addressed in Sanchez v. Mayorkas, 593 U.S. 409 (2021), and in various circuit decisions on TPS travel under advance parole. PM-602-0199 does not resolve those threshold questions, but for TPS holders who satisfy them, the discretionary lens applies. Country conditions in the designated country and length of TPS residence supply strong equities.
PM-602-0199 is a USCIS memorandum. Immigration judges adjudicate adjustment under their own discretion and under existing BIA precedent (Matter of Marin, 16 I&N Dec. 581 (BIA 1978); Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996); Matter of Arai, 13 I&N Dec. 494 (BIA 1970)), which the memo recites. EOIR adjudication is largely unchanged in framework. As a practical matter, however, ICE counsel may begin citing the memo in opposition to relief, and practitioners should be prepared to distinguish guidance to USCIS from controlling law in immigration court.
Past USCIS policy memoranda of comparable scope have drawn rapid litigation, and several have been enjoined in whole or in part. Counsel should plan cases for the current adjudication landscape and the litigation timeline running in parallel. As of this writing, no suit has been filed challenging PM-602-0199; this Part is therefore forward-looking.
APA notice-and-comment challenge. The cleanest theory is that PM-602-0199 is a legislative rule disguised as an interpretive memorandum, requiring notice and comment under 5 U.S.C. § 553. The applicable framework is the substantive-versus-interpretive distinction articulated in American Mining Congress v. MSHA, 995 F.2d 1106 (D.C. Cir. 1993). Plaintiffs will argue that the memo's operative directives — the "unusual or outstanding equities" requirement, the direction to weight failure-to-depart, and the categorical framing of adjustment as "extraordinary" — are substantive standards that affect rights and obligations rather than mere statements of agency policy. Circuit courts diverge on the application of the test; the D.C. Circuit has been comparatively receptive to substantive-rule challenges to USCIS guidance.
APA arbitrary-and-capricious challenge. Under Department of Homeland Security v. Regents of the University of California, 591 U.S. 1 (2020), an agency must consider the reliance interests created by its prior policy when changing course. PM-602-0199 does not address the reliance interests of pending adjustment applicants or those who organized their cases around the prior framework. This is a substantial vulnerability and one of the more litigable theories.
Due process challenge (principally as-applied). Where denial notices fail the memo's own internal directive to weigh positives and negatives explicitly, the resulting administrative record may support due-process challenges to the adequacy of the explanation. This theory is principally as-applied and will be developed in individual cases.
Patel v. Garland and the reviewability question. Patel held that INA § 242(a)(2)(B)(i) bars judicial review of factual determinations underlying discretionary denials of adjustment in removal proceedings. The memo invokes Patel and treats USCIS adjustment determinations as falling within the same unreviewable space. Whether Patel reaches programmatic challenges to the policy under which discretion is exercised — as distinct from case-specific factual review of an individual exercise of discretion — is a contested question on which the circuits have not converged. Several post-Patel decisions have recognized a distinction between the two, but the precise scope remains unsettled and counsel should not assume that programmatic APA review will survive in every circuit.
Practitioner takeaway: Frame challenges as facial or programmatic where the circuit law supports it. Develop the administrative record thoroughly at the agency level so any later as-applied claim is grounded in record evidence rather than extrinsic submissions. Section 706 actions on the specific record, paired with motion-to-reopen practice under 8 C.F.R. § 103.5, remain the principal tools regardless of how the programmatic-versus-as-applied question develops.
Likely venues are the Northern District of California, the District of Columbia, the District of Massachusetts, and the Southern District of New York. Post-CASA, broad relief is more likely through class certification than through nationwide injunction.
Scenario A: Preliminary relief granted. If a court enjoins application of the memo to a defined class, USCIS will adjudicate covered I-485s under the pre-memo framework. Identify clients within scope; supplement pending filings with notice of the injunction; watch for USCIS implementation guidance modeled on Behring v. Mayorkas. Continue developing discretionary equities in the packet because the injunction may be stayed or narrowed on appeal.
Scenario B: Preliminary relief denied or vacated. If the courts decline to enjoin the memo, the principal practitioner tools are mandamus and unreasonable-delay actions; motions to reopen or reconsider under 8 C.F.R. § 103.5 where the denial fails the memo's own internal weighing directive; APA § 706 actions on the individual administrative record; and strategic consular processing for applicants with the highest discretionary risk.
Scenario C: Agency rescission or modification. Policy memoranda are subject to change at the agency's election. A subsequent administration, or the current one responding to litigation pressure, could rescind or modify PM-602-0199. The general rule is that USCIS adjudicates based on the law and policy in effect at adjudication, not at filing, with limited exceptions. Counsel should track developments and avoid commitments to particular outcomes based on the current memo.
Scenario D: Category-specific follow-on memoranda. The memo closes by stating that USCIS "may provide policy guidance specific to certain adjustment of status categories or discrete populations of aliens." Likely targets include B-1/B-2 marriage-based adjusters with explicit reference to the 90-day FAM framework, F-1 marriage and employment-based adjusters, humanitarian parolees, concurrent EB-5 filers, and VWP immediate-relative adjusters. Each follow-on memorandum will likely draw its own litigation. Engagement letters should anticipate fees tied to policy developments.
The memo's directive that denials include an explicit positive-versus-negative weighing creates a more substantial administrative record than prior practice. To make that record usable on review:
PM-602-0199 does not rewrite the INA. It rewrites the lens for the discretionary phase of § 245(a) adjustment. For non-exempt applicants, eligibility is the floor, not the ceiling, and the memo invites adjudicators to treat adjustment as a privilege that must be earned in equities.
The categories that escape the framing most cleanly — the four authorities expressly enumerated in footnote 24 (refugee adjustment under § 209(a)(2), NACARA Title II, HRIFA § 902, and FY2020 NDAA § 7611), and the analogous statutory categories that share a similar non-discretionary structure (asylee adjustment under § 209(b) and the Cuban Adjustment Act) — require active protection at the RFE and NOID stage so that the memo's framing does not seep into a non-discretionary adjudication. The model language in Appendix C is calibrated for that purpose.
For categories within the framework, the practitioner's task is to build a discretionary record at filing, develop the administrative record for any contested adjudication, and document the strategic choice between adjustment and consular processing in writing. The answer to the question every client will ask — "am I still eligible?" — is unchanged. The answer to the harder question — "will I be granted?" — now depends on how thoroughly the discretionary case is built and how the litigation landscape develops over the coming months.
The following checklist applies to non-exempt I-485 filings under the memo. Items marked with an asterisk are particularly important for high-exposure categories. Counsel should tailor by category.
Counsel should memorialize the following in writing with the client where both adjustment and consular processing are available. The script below is a starting point and should be adapted to the file.
USCIS has issued new guidance directing officers to view adjustment of status more strictly, particularly in cases where the applicant remained in the United States after the original purpose of admission ended. The statute has not changed, but a case that is technically eligible can face significantly more discretionary scrutiny than before.
Your case can proceed in either of two ways. First, you may file for adjustment of status in the United States. This is generally faster and allows you to keep your work authorization and travel rights through the pending application, but it may now draw greater scrutiny under the new policy. Second, you may pursue consular processing of the immigrant visa at a U.S. embassy or consulate abroad. This avoids the new discretionary scrutiny but introduces travel, family-separation, and — depending on your history — possible re-entry bars under INA § 212(a)(9)(B).
Based on the facts you have shared, my recommendation is [adjustment / consular processing / further analysis before deciding]. The factors I considered are your immigration history, any periods of overstay or unauthorized employment, your family ties in the United States, your potential exposure to inadmissibility bars on departure, the wait times at the relevant consular post, and the strength of the discretionary equities we can present.
Please confirm by signing below that you have read and understood these options and the associated risks, that you have had the opportunity to ask questions, and that you wish to proceed with [adjustment / consular processing] as your strategy. If you choose to proceed differently, please indicate that in writing.
Where USCIS appears to import PM-602-0199 discretionary framing into a statutorily mandatory adjustment category, counsel can use the following baseline language. Two templates are provided: one for categories expressly enumerated in footnote 24 of the memo, and a second for analogous statutory categories that share the same non-discretionary structure but are not specifically enumerated in the footnote.
Applies to: refugee adjustment under INA § 209(a)(2); NACARA Title II (Pub. L. 105-100); HRIFA § 902 (Pub. L. 105-277, Div. A); FY2020 NDAA § 7611 (Pub. L. 116-92).
The Service's request appears to apply a generalized discretionary framework that is not applicable to this adjudication. Congress has established a specific statutory adjustment category under [cite controlling statute], and the governing statute and implementing regulations control. PM-602-0199 itself expressly acknowledges, at footnote 24, that this category is non-discretionary and that "if the applicant satisfies all statutory and regulatory eligibility requirements, USCIS must approve the application without considering whether the applicant warrants a favorable exercise of discretion." To the extent the record establishes the statutory and regulatory eligibility criteria, the application should be adjudicated under that framework alone, and any remaining inquiry should be limited to the issues actually raised by the controlling statute and regulation.
Applies to: asylee adjustment under INA § 209(b); Cuban Adjustment Act adjustment; any other statutorily structured non-discretionary adjustment authority. Adapt to the controlling statute.
The Service's request appears to apply a generalized discretionary framework that is not applicable to this adjudication. Congress has established a specific statutory adjustment authority under [cite controlling statute], under which adjustment of status is mandatory upon satisfaction of the enumerated statutory and regulatory eligibility criteria. The agency may not, through interpretive guidance, add an extra-statutory requirement that the applicant demonstrate "extraordinary" equities or otherwise justify a favorable exercise of discretion beyond the criteria established by Congress.
PM-602-0199 itself acknowledges, at footnote 24, that "[c]ertain adjustment of status provisions are non-discretionary" and that for such categories USCIS "must approve the application without considering whether the applicant warrants a favorable exercise of discretion." While [cite category] is not among the four authorities specifically enumerated in footnote 24, the statutory structure of [cite controlling statute] is parallel to those enumerated authorities and has been treated by USCIS and the courts as non-discretionary upon satisfaction of statutory eligibility. The application should accordingly be adjudicated under the controlling statutory framework, and any remaining inquiry should be limited to the issues actually raised by the controlling statute and regulation.
Use where USCIS has explicitly invoked the memo's "extraordinary relief" or "unusual equities" framing in a statutorily mandatory category, or where the RFE/NOID is otherwise unsupportable.
The RFE [or NOID] improperly conflates discretionary policy guidance with controlling legal authority. Where Congress has provided that adjustment of status shall be granted upon satisfaction of specified statutory and regulatory criteria, USCIS may not impose an additional "extraordinary relief" or "unusual equities" threshold as a surrogate eligibility requirement. The only proper inquiry is whether the applicant meets the governing statutory and regulatory criteria. To do otherwise would conflict with the controlling statute, with the implementing regulations, and with the agency's own acknowledgment in PM-602-0199 footnote 24 that certain statutory adjustment categories are non-discretionary; it would also constitute reversible error subject to challenge under 5 U.S.C. § 706.
The following categories are barred from § 245(a) adjustment except as noted. The memo's discretionary framework runs in parallel with these statutory bars where a structural carve-out applies.
VAWA self-petitioners are statutorily exempt from the § 245(c) bars, with limited exceptions, as the memo's footnote 12 acknowledges.
If you are currently navigating an adjustment of status filing — pending, contemplated, or affected by an RFE or NOID — and want to discuss how PM-602-0199 applies to your specific facts, schedule a consultation or call (917) 803-1117.
Anant Rathee, Esq., is the managing partner of Rathee Law Firm P.C., an immigration law firm based in New York City. This article is for general informational purposes and does not constitute legal advice. Practitioners and applicants should consult counsel about the specific facts of their case.
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