By Peter F. Asaad and Lori B. Geisinger
In light of new USCIS policy, I-485, Applications for Adjustment of Status, will face heightened scrutiny. The following FAQs include practical guidance for employers and foreign nationals to better understand USCIS' new discretionary framework.
What did USCIS announce?
USCIS released Policy Memorandum PM-602-0199 on May 21, 2026, directing its adjudicators to treat adjustment of status under INA § 245 as a discretionary benefit rather than a routine administrative option for obtaining permanent residence (“green card”) from within the U.S. The agency is instructing officers to conduct a thorough weighing of favorable and unfavorable circumstances before granting any I-485 application, and to consider whether an applicant should instead obtain permanent residence through a consular interview overseas.
Has the underlying statute changed?
No. Despite widespread media reports that adjustment of status is no longer available, Congress has not amended INA § 245. The memorandum is an internal policy directive that reshapes how officers should apply their existing discretionary authority. It does not impose new statutory criteria, but it recalibrates the practical threshold by requiring applicants to affirmatively show why their cases warrant discretion for approval of permanent residence inside the United States.
Can applicants still file for adjustment of status?
Yes. The pathway remains open. Nothing in the memorandum bars the filing of a Form I-485, and officers retain full authority to approve applications. Going forward, though, applicants will be required to affirmatively prove that their cases warrant favorable exercise of discretion and approval of permanent residence from inside the U.S. Adjustment filings also continue to provide interim benefits such as work authorization and advance parole while the application is pending.
Are cases already filed and pending affected?
The memorandum does not limit its impact to newly submitted applications. Officers adjudicating pending cases may apply the heightened discretionary lens, which could result in additional evidence requests, supervisory review, or longer processing times. Applicants will need to present a persuasive affirmative case demonstrating why the agency should exercise its discretion favorably.
How should applicants understand "discretion" in this context?
In practical terms, a USCIS officer may conclude that an applicant satisfies every statutory prerequisite for adjustment of status, yet still decline to approve the case inside the United States. The officer could instead determine that the applicant should complete immigrant visa processing at a consulate abroad, based on the overall balance of favorable and unfavorable factors. The memorandum requires that any denial grounded in an unfavorable exercise of discretion include a written explanation identifying the favorable and unfavorable factors the officer considered and articulating why the unfavorable factors predominated.
What unfavorable circumstances might USCIS officers consider while processing an adjustment application?
The memorandum identifies several unfavorable factors and categories of concern:
- Breaches of the terms or conditions of any immigration status
- Fraud or material misrepresentation in any government interaction
- Entry into the United States in contravention of applicable rules or policies
- Post-admission behavior that contradicts the stated purpose of a temporary stay
- Remaining in the country beyond an expected departure date
- Working without authorization
Officers are instructed to treat noncompliance with admission or parole conditions as particularly significant when it appears linked to an undisclosed intention to remain permanently — especially when a consular visa path was available.
What favorable circumstances should applicants present?
Drawing on the memorandum and potential discretionary factors, supportive evidence may include:
- Close family relationships in the United States
- Extended physical presence, particularly from a young age
- Demonstrable hardship to the applicant or dependents if the application is not granted
- Educational achievements
- English language ability
- Military service
- Consistent work history and career contributions
- Ownership of property or a business
- Active participation in civic, religious, or charitable organizations
- Timely tax filings and financial responsibility
- Evidence of rehabilitation where a prior offense exists
- Overall good moral character
Is a spotless record sufficient to warrant a favorable exercise of discretion?
Not necessarily. The memorandum signals that the mere absence of problems does not, by itself, constitute the kind of compelling showing officers may expect. Applicants should proactively assemble affirmative evidence of ties, contributions, and equities, rather than relying on the lack of negatives.
How are employment-based applicants affected?
For decades, employment-based applicants who enter the US with temporary nonimmigrant work visas have been able to pursue adjustment of status in the US. Pursuant to the new policy memorandum, USCIS officers may now scrutinize why the applicant chose to remain in the US to adjust domestically rather than departing for a consular interview. H-1B, L-1, O-1, and similar category holders should prepare to explain and document why their circumstances support approval in the United States. Early indications suggest strong economic factors and employment history may be weighed favorably in such instances.
Does dual-intent status provide protection?
Partially. The memorandum recognizes that seeking permanent residence is not inconsistent with holding a dual-intent nonimmigrant classification such as H-1B and L-1 status. As a result, applicants holding dual-intent status should remain in the strongest position. But while lawful maintenance of dual-intent status removes an adverse inference, it does not independently establish that discretion should be exercised favorably. Therefore, officers will continue to review the totality of an applicant’s conduct and immigration history.
What about applicants who entered on non-dual-intent visas?
Applicants who arrived in temporary visa status such as F-1, B-1/B-2, TN, E-2, or J-1 - which categories require the holder to demonstrate nonimmigrant intent - face heightened scrutiny of intent and prior conduct. They should expect close scrutiny of their entry purposes and departure plans to ensure they are consistent with stated temporary nonimmigrant intent.
How does this affect the F-1 to H-1B to green card trajectory?
This common career path and immigration strategy now carries additional uncertainty. Applicants who transitioned from F-1 student status through optional practical training into H-1B status, and now seek to adjust status to permanent residence, may face questions about their longstanding intent. Obtaining H-1B status improves the analysis by introducing dual intent, but it does not guarantee a favorable discretionary outcome. Some applicants in this pipeline may ultimately need to complete a consular interview abroad.
Does country of birth or visa backlog timing matter?
Yes. Applicants from countries without significant backlogs as indicated on the Department of State’s monthly Visa Bulletin may encounter this new adjudicatory framework sooner as their priority dates advance, and should prepare accordingly. Applicants born in India or China who face extended EB-2 and EB-3 immigrant visa wait times have more time to build their records and monitor developments before their cases reach adjudication.
Should applicants continue extending their nonimmigrant status after filing I-485?
As a precautionary measure, yes. Maintaining valid H-1B, L-1, or other nonimmigrant status while adjustment cases remain pending provides a safety net if the adjustment application encounters difficulty. Relying exclusively on status as a pending applicant to adjust status with employment authorization evidenced by an EAD card and/or advance parole to travel leaves the applicant more vulnerable if the application to adjust status is denied or delayed. For example, an applicant to adjust status who travels abroad in reliance on advance parole without a valid underlying nonimmigrant visa could face significant reentry obstacles if the I-485 is denied while outside the country.
How does this memorandum impact family-based applicants for adjustment of status who are married to U.S. citizens?
The memorandum applies broadly across adjustment categories. Even immediate relative cases — which historically received less discretionary scrutiny — may now face closer examination of entry circumstances, visa compliance history and past overstays, and overall equities.
Could this policy memorandum result in fewer green cards being issued?
It is certainly possible. If more applicants are redirected to consular processing — where significant appointment backlogs, administrative processing delays, scheduling and staffing constraints, and bans on immigrant visa processing for certain countries already exist — sizeable immigrant visa numbers may go unused within a fiscal year, resulting in fewer green cards being issued.
What documentation should applicants assemble in advance of starting an adjustment of status application?
Applicants should begin compiling a comprehensive record, including:
- USCIS approval notices and I-94 arrival/departure records
- Current passport and prior visa stamps
- Federal and state tax returns with W-2 forms
- Employer verification letters detailing position, tenure, and compensation
- Bank and financial account statements
- Pay records and evidence of promotions or professional growth
- Children's school enrollment and attendance records
- Mortgage statements, lease agreements, or property records
- Documentation of volunteer work, civic engagement, or community leadership
- Evidence of military service
- Professional or personal reference letters
- Medical records or humanitarian evidence where relevant
- Criminal background clearance documentation
- A complete chronological record of lawful status maintenance
What role should employers play?
Employers with sponsored employees in the adjustment of status pipeline should provide robust support letters confirming the employee's role, tenure, and value to the organization. They should also allow employees adequate time to prepare for potential interviews or respond to evidence requests. Employers should plan for the possibility that some employees may need to travel abroad for consular interviews and required medical examinations, which could temporarily affect workforce availability.
Is the memorandum vulnerable to legal challenge?
Possibly. The document expressly states that it constitutes internal guidance only and does not confer enforceable rights. Nonetheless, affected applicants or advocacy organizations may challenge its implementation on procedural or substantive grounds, which could result in injunctions or modifications.
Will USCIS provide further clarification?
The memorandum indicates that the agency intends to examine specific adjustment pathways and particular applicant populations in greater detail. Additional category-specific guidance may follow, though no timeline has been announced.
What are the key takeaways?
Adjustment of status remains a viable pathway for permanent residence and a green card, but will require thorough pre-filing case assessment and more robust application preparation. Applicants should:
- Approach every filing as if the I-485 application will be actively scrutinized
- Review immigration history and identify any compliance gaps, status violations or other unfavorable factors that could become discretionary issues under the new policy guidance
- Assemble and submit affirmative evidence of equities such as ties, contributions, and compliance; develop a comprehensive documentary record covering employment, finances/tax history, family connections, community involvement and length of lawful presence
- Preserve nonimmigrant status as a fallback wherever feasible
- Limit discretionary international travel until the landscape stabilizes
- Begin supplementing pending cases now in anticipation of evidence requests or interview notices
- Engage immigration counsel early to develop a tailored strategy and discuss consular processing as a parallel option for higher-risk cases
- Expect enhanced scrutiny and longer adjudications of filed applications, as well as an increase in requests for evidence seeking documentation of applicants’ equities and explanations of any adverse factors
We will continue tracking this policy's implementation and will share further analysis as adjudication patterns emerge. Applicants with upcoming interviews or pending cases should reach out to their PLG immigration counsel promptly to discuss preparation and next steps.
