USCIS's New Adjustment of Status Memo Will Probably Come to Nothing

On May 21, 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." It has caused widespread panic. It shouldn't.

What the memo says

The memo's thesis is that adjustment of status under INA § 245 is not a routine procedure but an "extraordinary" act of "administrative grace" — and that, with limited exceptions, Congress expects nonimmigrants and parolees to depart the United States and pursue an immigrant visa abroad through consular processing rather than adjust here.

In practical terms, USCIS appears to be laying the groundwork to route most adjustment seekers through consular posts in their home countries instead of adjudicating Form I-485s domestically — presumably by denying I-485s as a matter of discretion.

That matters because adjustment of status carries real advantages. The applicant remains in the United States during processing and can obtain work authorization. Consular processing is slower, subject to unpredictable delays, requires a trip abroad of several weeks or longer, and — critically — is far harder to challenge in court.

Why I'm not worried about the memo itself

1. The memo is poorly supported.

For a document arguing that Congress intended adjustment of status to be an extraordinary remedy, the memo contains no citation to any statute or any statement of Congress saying so. INA § 245(a) has been on the books since 1952. If Congress intended adjustment to be treated as extraordinary relief, it is remarkable that in seventy years no member of Congress ever said as much, and that the words "extraordinary remedy" appear nowhere in the statute.

The entire argument traces back to dicta in a single Sixth Circuit case from 1967, Chen v. Foley, run through Matter of Blas (BIA 1974) and a string of cases that simply repeat the same phrase. The memo isn't built on a real foundation. It found one favorable line in a 1967 case and stacked up every later case that quoted it — but quoting something over and over doesn't make it the law.

There is a reason the memo leans on pre-1980 case law: it does not reflect current law. IIRAIRA, passed in 1996, fundamentally reshaped this landscape. When Chen and Blas were decided, there were no 3-, 5-, or 10-year unlawful presence bars, and consular processing was genuinely the default path. IIRAIRA added the bars and, in doing so, made adjustment of status the safer and more orderly route for many applicants. Quoting congressional intent from the 1970s to interpret a statutory scheme that Congress overhauled in 1996 is exactly the kind of error a first-year law student gets flagged for — pulling a case that fits the conclusion without checking whether intervening legal changes distinguished it.

It is true that adjustment is "discretionary." But that word does not mean what the memo wants it to mean. All it means is that an officer can say no in a genuinely unusual situation the law didn't anticipate. It does not mean an officer can deny a qualified applicant just because they want to. It was discussed more often in the 1960s and 70s because most of the discretionary bases used back then have since been codified into specific rules:

• “Preconceived intent" to immigrate via the nonimmigrant route is no longer a freestanding discretionary tool for USCIS. The 90-day misrepresentation framework — a sworn statement to an officer followed by contradicting conduct within a defined window — is a Department of State construct in the Foreign Affairs Manual that governs consular officers. See 9 FAM 302.9-4(B)(3)(g)(2). If anything, USCIS's own removal of preconceived-intent guidance cuts against the memo: the agency cannot reach back for a discretionary basis it deliberately retired.

  
  

• Unauthorized employment is now its own statutory bar under INA § 245(c). And the BIA held long ago that even where it remains an adverse factor, "that factor alone should not ordinarily result in the discretionary denial of adjustment of status to those individuals who are statutorily eligible." Matter of Khan, 17 I. & N. Dec. 508, 510 (BIA 1980).

  
  

The memo's reliance on § 245(c) is self-defeating. It points to the eligibility limitations in 245(c) as evidence that adjustment is "extraordinary." But the opposite follows: if Congress wrote specific limitations on adjustment, then adjustment for applicants who satisfy those limitations is plainly a mundane, regular benefit — not an extraordinary one. The existence of detailed eligibility rules reinforces that USCIS's negative discretion is reserved for genuinely extraordinary cases where every statutory box is checked but some unusual hurdle remains, not for blanket denials.

2. It will almost certainly be struck down in court.

An agency cannot change an established policy at will. A court will set aside an agency action as "arbitrary and capricious" under the APA where a reasonable explanation for the change cannot be discerned. See Gulluni v. Levy, 85 F.4th 76, 82 (1st Cir. 2023) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29, 43 (1983)).

Domestic adjustment of status is unquestionably an established policy. In FY 2025 alone, more than 1 million I-485 applications were filed and roughly 745,000 were approved — close to 90% of all cases decided that year. It is preposterous to portray adjustment as a rare exception to the “regular” consular process when USCIS approves three-quarters of a million of these applications every year.

The memo is loaded with language designed to reassure courts that it is a mere “reminder” and not a binding command: “This policy memorandum is intended solely for the guidance of USCIS personnel... but it does not remove their discretion in making adjudicatory decisions.” But if I-485 approvals drop from roughly 745,000 a year to zero or near zero, no court will believe this was anything other than a binding policy change. And once a court treats it as a binding change, the agency will be forced to defend the change on its merits — to back up the claim that adjustment has “always” been exceptional, and that freeing up officer time justifies massive disruption to expensive benefit proceedings.

The courts will also ask whether the policy is “in accordance with law.” They will note that if an applicant’s failure to depart were as decisive as the memo claims, Congress would not have written § 245 to require only an “admission or parole” plus lawful status “on the date of filing.” And they will note that much of what USCIS now wants to treat as discretionary baggage — unauthorized employment, misrepresentation — has already been addressed by Congress through specific rules and exceptions. An officer who in 2026 denies an immediate relative’s adjustment “in his discretion” for unauthorized employment is butting directly against the congressional judgment expressed in INA § 245(c)(2).

3. Officers may simply ignore it.

Federal agencies cannot create binding "legislative rules" without notice-and-comment rulemaking — publishing the proposed rule, accepting public comment, and responding to it. USCIS bypassed that process here, issuing this as "guidance." Agencies do that precisely to avoid having courts strike the rule down as an unlawful legislative rule. But the strategy cuts both ways: by labeling it "guidance" and a restatement of supposedly existing policy, USCIS is forced to concede that the memo is not law and cannot be relied upon as law.

We have seen this movie recently. Last year USCIS issued a similar memo on naturalization, suggesting applicants would have to affirmatively show they were valuable, contributing members of society. It induced the same panic. As far as anyone can tell, nothing changed — naturalizations are still adjudicated the way they always were. One likely reason: leadership cannot explicitly order officers to rule a particular way without converting the guidance into a binding rule and thereby making it illegal. The officers largely ignored the naturalization memo, and it faded. There is a strong chance the May 21 adjustment memo meets the same fate.

This is already showing up

We are now seeing discretion-based Requests for Evidence issued on Form I-485s. These RFEs do not allege ineligibility, a bar under § 245(c), inadmissibility, or any adverse factor at all. They simply ask a statutorily eligible applicant to affirmatively build the discretionary record. Here is the operative language from one such RFE, with a response deadline of August 12, 2026:

In order to establish your eligibility for adjustment of status, you must demonstrate that there are positive factors in your case, such that your Form I-485 warrants a favorable exercise of discretion. These positive factors may include, but are not limited to, any of the following:

• Family ties within the United States;

• Residence of long duration in this country (particularly when residence began at a young age);

• Hardship to the applicant or applicant's family if relief is not granted;

• Education;

• Fluency or proficiency in English;

• Service in the U.S. armed forces;

• A history of employment;

• The existence of business or property ties;

• Evidence of value and service to the community (ex: religious organizations, volunteer organizations; etc.);

• Paying taxes;

• Proof of rehabilitation if a criminal record exists; and

• Any other evidence demonstrating that a favorable exercise of discretion is warranted in your case.

Therefore, please evidence that you would like USCIS to consider when determining whether a favorable exercise of discretion in your case is appropriate.

That factor list is essentially the Matter of Marin / Matter of Mendez-Moralez equities framework — the same balancing test the BIA has used for decades. What is new is the posture: USCIS is asking an otherwise-eligible applicant to prove up discretion in advance, with a hard deadline, before any adverse finding has been made.

If you receive one of these, understand what it is and what it is not. It is not a denial, and it is not cause for panic. It is an evidence request with a deadline — and a well-prepared case answers it comprehensively. This is also exactly why we front-load positive discretionary factors into every pending file: family ties, length of residence, hardship, education, employment history, tax compliance, community service, and character evidence belong in the record from the start, not scrambled together after an RFE lands.

The bigger picture

This memo does not exist in a vacuum. Since January 2025 lawful immigration has been squeezed from every direction. EAD and TPS applications have stalled. HR1 gutted the ability to maintain work authorization during a lawful period of stay. Applicants who should sail through are being detained at interviews for no apparent reason. The throughline is a strategy of attrition — making lawful immigration slow, expensive, and frightening enough that people give up and self-deport before they ever get a decision.

There is a second motive worth naming. Pushing applicants from adjustment into consular processing pushes them outside the reach of the courts and their own attorneys. I attend adjustment interviews with my clients and I have stopped interviews from going off the rails. Attorneys cannot attend consular appointments. And consular decisions are largely shielded from review by the doctrine of consular non reviewability — you generally cannot bring a federal suit over arbitrary or capricious consular decision-making. Shifting cases to the Department of State is, functionally, an attack on the right to counsel and on judicial oversight. That is also why we are seeing pressure on the I-130 plus I-601A waiver process.

Is now a good time to file?

If you qualify — yes. Yesterday was better than today, and a year ago was better than yesterday. Stop worrying about what you can't control and act on what you can. Will it be more expensive? Probably. Is that one more reason to file with a real attorney rather than self-filing or using a notario? In my view, yes — but that value judgment is yours to make.

Adjustment of status is not dead. This is an unsigned memo built on two BIA cases from the 1970s and dicta from a 1967 circuit decision. The executive branch does not get to rewrite the statute, and it cannot graft a "showing of unusual or even outstanding equities" requirement onto INA § 245(a) when the statutory text says no such thing.