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USCIS Adjustment of Status Policy: Who This Impacts and How to Prepare

On May 21, 2026, USCIS issued a policy memorandum (PM-602-0199) that impacts applicants for adjustment of status in the United States. See the memorandum here. 

Who Is Impacted by USCIS PM-602-0199?

This memo affects:

• People physically present in the United States applying for adjustment of status (green cards) under the Immigration and Nationality Act, Section 245 (INA §245), which includes family-based, employment-based, trafficking victim and crime victim categories.

This memo does not affect:

• those who are already permanent residents, 
• conditional permanent residents who will file or have filed a petition to remove the conditions of permanent residency status (I-751 petition),
• refugees and asylees filing for permanent residency (green card) under INA §209,
• applicants for naturalization (U.S. citizenship), or
• applicants physically outside the United States applying for immigrant visas.

Will it be Applied to Cases Already Pending or Only Newly Filed Cases? 

The PM characterizes the guidance as “longstanding approach” which suggests it will be applied to cases that are currently pending, not only cases filed after May 21, 2026, but it is not clear at this time. 

What Does the Memo Claim to Change in the Application Process?

This memo is not a categorical ban on adjustment of status applications filed by individuals inside the United States. Instead, it aims to expand the application of a favorable exercise of discretion through heightened consideration of “negative factors,” which ultimately would undermine statutory requirements. Federal statute explicitly authorizes approval of applications even when an applicant has “negative discretionary factors,” which include:

• Violation of terms of visa or parole in the U.S.,
• Failure to depart before your authorized period of stay expired, and
• Working in the USA without authorization.

Other negative discretionary factors mentioned in the memo include:

• “Preconceived intent” to circumvent consular processing of permanent residency, and
• Committing fraud or misrepresentation in your dealings with any government agency.

The memo claims it is “reminding its officers and the public” that adjustment of status is “a matter of discretion and administrative grace,” authorizing denial of applications when negative factors outweigh positives. But while discretion has always been part of the application process, discretion cannot nullify statutory eligibility explicitly enumerated within the statute, such as unauthorized employment or failure to maintain a lawful non-immigrant status in certain instances.

The Memo goes further to characterize adjustment of status (obtaining permanent residency in the United States) as subordinate to the “regular” immigrant visa process (where one applies for permanent residency outside the United States at a U.S. embassy), which is another fiction.

This intent of Congress enacted by INA §245 for decades has recognized adjustment of status as an independent means of obtaining lawful permanent residency, separate from the immigrant visa process. Moreover, adjustment under INA §245 in many instances explicitly forgives unauthorized employment, failure to maintain a status and violation of non-immigrant status. The Memo also fails to mention several cases that hold that adjustment of status should be granted to immediate relatives of US citizens in the absence of any adverse factors, or even where the negative factor of preconceived intent to immigrate permanently through a non-immigrant entry is present. USCIS’ omission of binding precedent is disingenuous at best. 

How Does the PM Contravene the Statute? 

The PM seeks to contravene the INA by declaring certain factors within the reach of discretion when they are enumerated in the statute. It ignores that several of the above negative “factors” are explicitly addressed in the statute and whether to exercise discretion favorably should only be considered after application of the statutory framework. 

For instance, INA §245 does not require that an applicant continue to maintain a lawful non-immigrant status after filing the application, but the PM suggests that one risks denial as a matter of discretion for failure to do so. As a result, when possible, applicants for adjustment of status can best mitigate risk by continuing to maintain a lawful non-immigrant or parole status when possible, even after filing an adjustment of status. 

The statute and implementing regulations often permit approval if one was in a status when filing the application. INA §245(a),(c). For immediate relatives of US citizens (spouses, parents and children of a US citizen), if the applicant was lawfully admitted, inspected or paroled, she can be approved even when no longer in a status at the time of filing the application. For trafficking victim and crime victim categories, the statute permits adjustment to a permanent resident when not lawfully admitted inspected or paroled upon entry to the United States. 

For both family-based and employment-based applicants, one can be approved even with a period of unauthorized employment or failure to maintain a non-immigrant status (180 days for employment based (See INA §245(k)), or indefinitely for certain family-based applicants (See INA §245(a),(c)) before reaching discretion and administrative grace. 

Committing fraud in an immigration process is a serious negative factor, recognized by Congress; it has been a ground of inadmissibility addressed specifically in the statute for decades. The INA authorizes a waiver for such conduct if a hardship would result to a US citizen spouse or parent (INA §212(i)), but almost no waiver is available for making a false claim to US citizenship. See: INA §212(a)(6)(C)(i), and (ii). Where there is fraud to procure an immigration benefit, discretion only comes into the analysis after an applicant meets her burden of proof on a waiver, if available. By lumping immigration fraud into the same bucket as the other “discretionary factors” mentioned, the Memo again seeks to re-write the law and expand “discretion” over and above what Congress intended explicitly in the statute. 

How Should One Prepare an Application for Adjustment of Status Under INA §245 After PM-602-0199?

The Memo reminds officers that they must weigh all relevant factors — not just the negative ones. Positive factors that can strengthen your case include:

• Strong family ties in the United States, especially U.S. citizen or permanent resident spouses, children, or parents, 
• Length of residence in the U.S. and community ties (employment history, civic involvement and community letters), 
• Evidence of good moral character (professional accomplishments, family letters, charitable contributions), 
• Employment history and contributions to your community, and
• Documented record of paying taxes in the United States.

Therefore, applicants should add evidence to support positive factors, especially if negative factors are present. If you are an existing client, we will let you know if additional evidence is needed for your case. 

Think of the adjudication process less like a checklist and more like a scale. On one side sit everything that could count against you and on the other side are factors in your favor. The officer’s job is to look at both sides and decide if positive equities merit a favorable exercise of discretion. 

What Can One Do to Prepare For the New Adjudicative Environment?

It is not yet clear how this PM will be applied as no specific guidance has been issued, but we recommend the following: 

• If possible, continue to maintain a lawful non-immigrant status even after filing for adjustment of status, 
• Add evidence of positive equities to your case, and
• Prepare answers to the following questions in advance of your interview:  
  • Why did you apply for AOS instead of consular processing?
  • Are there any factors that would prevent you from consular processing? 
  • Why did you remain in the United States after your nonimmigrant status/authorized period of stay expired? 
  • What family or other ties do you have in your home country? 

What Happens If USCIS Denies a Case on Discretion?

One important point in the Memo: if USCIS denies your AOS application based on a discretionary decision rather than failure to meet statutory eligibility, the officer must now provide a written explanation showing which negative factors outweighed the positive ones and why. This matters because it creates a clearer record if you want to appeal or refile with better evidence. 

Because the PM conflicts with federal law, litigation will follow if USCIS denies applications “as a matter of discretion” where the statute permitted approval. While we await USCIS’s implementation, Hykel Law is prepared to file suit on behalf of applicants denied unlawfully.

This Memorandum is offered as general guidance and should not be construed to offer specific legal advice. If you need more specific advice, contact us to schedule a consultation appointment. If guidance beyond this memo is needed for your individual case, our staff will be reaching out to you at the appropriate time in your matter. 

By: Renee Hykel Cuddy, Esq. and Tamunotonte Fenny, Esq. 

¹INA §245(a),(c).

²USCIS’ own Policy Manual talks about adjustment of status as a primary means of obtaining permanent residency; specifically, (Vol. 7, Pt. A, Chpt. 1 – Purpose and Background | USCIS), states: the “Congress created the adjustment of status provision to enable certain aliens physically present in the United States to become LPRs without incurring the expense and inconvenience of traveling abroad to obtain an immigrant visa. Congress has added additional adjustment of status provisions to: ♣ Ensure national security and public safety; ♣ Advance economic growth and a robust immigrant labor force; ♣ Promote family unity; and ♣ Accommodate humanitarian resettlement.

³Matter of Arai, 13 I&N Dec. 494 (BIA 1970); Matter of Lam, 16 I&N Dec. 432 (BIA 1978).

⁴Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980); Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981).

⁵Failure to recognize binding legal precedent violates the rules of professional conduct for lawyers and can lead to licensure sanction or disbarment.

⁶This statute is designed to encourage victims of these heinous crimes to come forward to assist law enforcement to make our country safer and therefore forgives unlawful entry and/or failure to maintain a lawful status, if ever held.