USCIS has issued Policy Memorandum PM-602-0199, dated May 21, 2026, 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.” Policy Memorandum PM-602-0199

The memorandum does not repeal adjustment of status, amend INA Sec 245, or by itself create a new regulation. But it is nevertheless a consequential policy document because it instructs USCIS officers to treat adjustment of status not as the ordinary in-country completion of the green card process, but as a discretionary exception to the “regular” immigrant visa process abroad. The memo states that adjustment under INA Sec 245 is a matter of discretion and administrative grace, “not designed to supersede” regular consular processing, and relies heavily on older BIA and federal court language describing adjustment as extraordinary relief.

The agency’s accompanying public messaging went further. USCIS announced that foreign nationals seeking adjustment “must do so through consular processing” outside the United States, while officers are to consider relevant factors case by case in deciding whether the applicant warrants this “extraordinary” form of relief. USCIS announcement

This has been a surprise, if not shocking, reversal of a long-standing practice under which many foreign nationals in lawful status – spouses of U.S. citizens, employment-based workers, students, refugees, and asylees among them – could pursue permanent residence without departing the United States.

Form I-485 has not disappeared. The legal significance is that USCIS is telling adjudicators to make the discretionary portion of adjustment of status do far more work than it has historically done.

In practical terms, cases that previously turned on statutory eligibility, admissibility, visa availability, maintenance of status, and routine discretion may now require an affirmative showing of why the applicant should be allowed to obtain permanent residence inside the United States rather than through a U.S. consulate abroad.

What the Memorandum Actually Changes

The memorandum begins by saying that adjustment of status has always contained a discretionary element. INA Sec 245(a) provides that the status of an eligible applicant “may” be adjusted, and USCIS has long maintained policy guidance requiring officers to balance favorable and unfavorable factors.

The memo, however, changes the practical center of gravity. It directs officers, where consular processing is available for the immigrant category at issue, to consider the view that adjustment is an extraordinary discretionary alternative to the regular immigrant visa process and an act of administrative grace.

The memo identifies certain facts as newly salient adverse factors. Officers are told to consider violations of immigration law or status conditions, fraud or false testimony, whether an admission or parole was consistent with law and policy, conduct after admission inconsistent with the purpose of the nonimmigrant classification or parole, and whether the applicant failed to depart as expected. The memo states that failure to comply with the conditions of admission or parole and failure to depart are “highly relevant,” especially when related to an intent to reside permanently in the United States and where the applicant could have pursued the goal through ordinary consular immigrant visa processing.

At the same time, USCIS expressly acknowledges that applying for adjustment is not inconsistent with maintaining status in a dual-intent category. That is a critical point for H-1B and L-1 workers. But the memo immediately limits the comfort of that recognition by stating in a footnote that maintaining lawful dual-intent status is not sufficient, by itself, to warrant a favorable exercise of discretion.

The memo also tells officers that, when denying adjustment on discretionary grounds, the denial must identify the positive and negative factors considered and explain why the negative factors outweigh the positive ones. This will be highly relevant for motions, appeals, and litigation because it gives applicants and counsel a record to challenge, but it also confirms that USCIS expects officers to engage in a more explicit discretionary balancing analysis than many adjustment applicants have historically encountered.

“Not Dead,” But No Longer Routine

What will all this mean in practice?

The policy may produce more RFEs, NOIDs, and denials based on unfavorable discretion. There will be longer adjudications and greater use of consular processing as the default alternative.

There is also a major ambiguity in the government’s public messaging. USCIS’s news release and DHS statements suggested a broad rule that temporary visa holders must return home to apply for green cards except in extraordinary circumstances. But later reporting indicated that USCIS also told some news outlets that people who provide an “economic benefit” or are otherwise in the “national interest” could likely remain on their current path, although those terms were not defined.

There will be litigation. Experts argue that the memo represents an abrupt upheaval of established USCIS policy and contend that “extraordinary relief” is not a statutory standard found in INA Sec 245. Practitioners also point to BIA precedent that has historically supported favorable discretion in many immediate-relative adjustment cases.

Who Is Most Affected

The effect of the policy depends heavily on the applicant’s immigration category, manner of entry, maintenance of status, adverse history, and whether there is a meaningful consular-processing alternative.

H-1B, H-4, L-1, and L-2 Workers

Dual-intent workers are not the worst-positioned group. The memo expressly acknowledges that adjustment is not inconsistent with maintaining dual-intent nonimmigrant status. That language should preserve the basic proposition that H-1B and L-1 workers may simultaneously hold temporary status and pursue permanent residence.

However, according to USCIS, lawful dual-intent status alone does not compel favorable discretion. For H-1B and L-1 workers, that means employers and counsel should assume that an I-485 filing may need to include a more developed supporting record: lawful status history, maintenance of employment authorization, tax compliance, family and community ties, business need, specialized skills, wage and labor-market evidence, and the disruption that would occur if consular processing caused months of absence.

The greatest practical risk for this group is interruption. If USCIS increasingly directs employment-based applicants abroad, workers may face consular appointment delays, administrative processing, visa suspensions, or travel restrictions.

F-1 Students, OPT, STEM OPT, J-1 Exchange Visitors, TN Professionals, E-3 Workers, and Other Non-Dual-Intent Categories

Single-intent or limited-intent categories are more exposed. The memo’s discretionary logic focuses on the idea that nonimmigrants were admitted for a temporary purpose and were expected to depart when that purpose ended. That framing creates risk for students, visitors, exchange visitors, E-3 workers, and others whose status is not classically dual-intent.

For F-1 students moving from OPT or STEM OPT into an employment-based green card process, the question may become whether the applicant can demonstrate a credible, lawful progression from study to employment to permanent sponsorship, rather than an entry or extension strategy inconsistent with the stated nonimmigrant purpose.

For TN and E-3 professionals, the issue is similar: they may have strong employer support and economic value, but the categories themselves do not provide the same dual-intent shelter as H-1B or L-1.

For B-1/B-2 visitors who marry or otherwise become eligible for permanent residence after entry, the scrutiny may be especially acute because any perceived inconsistency between the purpose of entry and later adjustment filing can become a discretionary negative factor.

It would be reasonable to conclude that B-1/B-2, F-1, and other single-intent categories are likely the highest-risk groups under the new framework.

Employment-Based Immigrants in EB-1, EB-2 NIW, PERM-Based EB-2/EB-3, and EB-5 Categories

Employment-based applicants may have the strongest path to fitting within the government’s “economic benefit” and “national interest” clarification, but that clarification is not yet a formal safe harbor. It must be further explained and formalized.

A USCIS spokesperson reportedly stated that people whose applications provide an economic benefit or are otherwise in the national interest will likely be able to continue on their current path. That probably covers EB-1A extraordinary ability, EB-1B outstanding researcher or professor, EB-2 national interest waiver, EB-5 investor, and PERM-based employment categories.

Still, employers should not treat employment-based classification as automatically protective. The memo does not specify which positive factors are sufficient, or whether any particular factor will outweigh others. That means employment-based applicants may need more than an approved I-140 and current priority date. They may need a record explaining why in-country adjustment serves U.S. interests better than requiring departure for consular processing.

Family-Based Immediate Relatives of U.S. Citizens

Immediate relatives – spouses, unmarried minor children, and parents of U.S. citizens – face one of the most consequential uncertainties.

Historically, immediate relatives admitted or paroled into the United States could often adjust status despite overstays or unauthorized employment, because several INA Sec 245(c) bars do not apply to them.

The new memo does not remove those statutory protections, but it may invite officers to treat overstays, status violations, and failure to depart as discretionary negatives.

That is why this group is likely to be central in any litigation or policy challenge. One can argue that BIA precedent has historically supported favorable discretion in immediate-relative adjustment cases and that the memo’s “extraordinary relief” framing is contrary to the structure and use of INA Sec 245. The real-world stakes are substantial. If a spouse of a U.S. citizen who has accrued unlawful presence is required to leave for consular processing, departure may trigger three- or ten-year unlawful-presence bars, requiring waiver strategy and potentially prolonged family separation.

Family Preference Applicants

Family preference applicants – spouses and children of lawful permanent residents, adult children of U.S. citizens, married children of U.S. citizens, and siblings of U.S. citizens – may face even greater practical challenges. Unlike immediate relatives, they often wait years for visa availability, and they are more likely to be affected by status-maintenance rules, age-out issues, and priority-date delays.

If adjustment is denied or discouraged and consular processing becomes the expected route, these applicants may lose access to adjustment-based work authorization and advance parole while also facing consular backlogs.

Refugees and Asylees

Refugees and asylees require separate treatment. The memo’s footnote recognizes that certain adjustment provisions are non-discretionary and states that, where the applicant satisfies all statutory and regulatory requirements, USCIS must approve without weighing discretion. The footnote specifically cites INA Sec 209(a)(2), the refugee adjustment provision. Refugee adjustment should therefore be among the clearest exceptions to the memo’s discretionary framework.

Asylee adjustment is more complicated. Asylees generally adjust under INA Sec 209(b), which is phrased differently and has historically included discretion. However, asylees typically do not have a meaningful immigrant-visa consular alternative based on the asylum grant itself.

The memo acknowledges that immigrant categories where only adjustment provides a pathway to permanent residence are exceptions to the general consular-processing expectation. Practically, asylee adjustment applicants should still expect careful review, but any effort to send asylees back to the country of persecution would raise obvious legal and humanitarian problems.

VAWA Self-Petitioners, Special Immigrant Juveniles, T and U Visa Holders, and Other Humanitarian Applicants

Humanitarian applicants should be treated with particular care. The memo references exceptions in the adjustment statute, including INA Secs 245(h), 245(i), and 245(m), and its statutory discussion recognizes that some categories have adjustment-only pathways. These provisions are significant for Special Immigrant Juveniles, grandfathered 245(i) applicants, and U visa adjustment applicants; T visa holders also have a separate adjustment pathway. VAWA self-petitioners are also specifically referenced in the memo’s discussion of INA § 245(c) exceptions.

Advocacy groups have already warned that a broad consular-processing requirement would be especially harsh for trafficking survivors, abused spouses, and abused or neglected children.

For these cases, the strongest argument is that the statutory structure itself contemplates in-country protection and adjustment. The very purpose of VAWA, SIJ, T, and U frameworks would be undermined if applicants were routinely required to depart and seek immigrant visas abroad.

Parolees, TPS Holders, DACA Recipients, and Applicants With Prior Unlawful Presence

Parolees are directly implicated because the memo repeatedly describes parole as temporary and linked to urgent humanitarian reasons or significant public benefit, with an expectation of departure when the purpose of parole has been served. Applicants who entered on parole and later seek adjustment may therefore need to show why adjustment is appropriate despite the memo’s view of parole as temporary.

TPS and DACA recipients vary widely. Some have lawful entries or parole; others do not. The new memo does not solve the preexisting problem that applicants who were never inspected and admitted or paroled are generally ineligible for adjustment under INA Sec 245(a), unless another statute applies.

For those who can only consular process, departure may trigger unlawful-presence bars if the applicant accrued enough unlawful presence before obtaining protection or status. Three- and ten-year bars is the main risk under the new approach.

Applicants From Countries With Limited Consular Operations, Travel Restrictions, or Visa Suspensions

The memo assumes that consular processing is the ordinary alternative. However, for many applicants, consular processing may be practically unavailable, unsafe, or indefinitely delayed.

Applicants from countries subject to travel bans, visa-processing pauses, or consular closures could be forced into a “Catch-22,” where they are told to leave but cannot realistically obtain an immigrant visa or return.

This issue should become central in discretionary filings. If consular processing is unavailable, unsafe, or predictably futile, applicants should document that fact. The memo’s own guidance is built on cases “where consular processing is available” based on the immigrant category.

Whether USCIS will treat country-specific consular dysfunction as relevant remains unresolved. However, this should be the argument for lawyers to make.

Quick recap: does the memo provide exceptions?

To re-summarize what has already been mentioned earlier in this article: the memo suggests exceptions, but those are partly explicit, partly structural, and partly still undefined.

The most explicit exceptions are for adjustment provisions that are non-discretionary. The memo states that certain adjustment provisions require approval if the applicant satisfies all statutory and regulatory requirements, without a discretionary weighing analysis. It cites INA Sec 209(a)(2), which concerns refugee adjustment, as well as certain special statutory adjustment programs such as NACARA-related, HRIFA-related, and Liberian Refugee Immigration Fairness provisions.

A second category consists of cases where only adjustment of status provides the pathway to permanent residence. This is important for many humanitarian and special statutory categories, although USCIS has not yet issued category-by-category guidance.

A third category consists of dual-intent nonimmigrants, but this is not a complete exception. H-1B and L-1 workers benefit from the memo’s recognition that adjustment is not inconsistent with dual-intent status, but they must still satisfy the discretionary analysis.

A fourth possible exception is the “economic benefit” or “national interest” category described in USCIS’s reported post-announcement clarification. That clarification may help employment-based applicants, investors, physicians, researchers, healthcare workers, engineers, AI and technology professionals, and other workers whose continued presence can be characterized as serving U.S. interests. However, because the memo itself does not define those terms, this is best understood as a possible consideration, not a formal safe harbor.

Finally, there remains an individualized extraordinary-circumstances or unusual-equities exception. The memo instructs officers to evaluate the totality of the circumstances and refers to “unusual or even outstanding equities” as necessary to offset adverse factors. This means applicants with serious family hardship, medical issues, long lawful residence, U.S. citizen children, essential employment, military-family connections, humanitarian vulnerability, dangerous country conditions, or unavailable consular processing may still argue for favorable discretion.

Employer and Compliance Implications

For employers, the immediate concern is workforce continuity. A policy that sends more green card applicants into consular processing creates risks far beyond immigration paperwork. Employees may need to leave the United States for uncertain periods, visa appointments may be unavailable, cases may be placed in administrative processing, and employees may lose the ability to work if they cannot return before status or work authorization expires.

Employers should revisit green card strategy at the PERM, I-140, and I-485 stages. Employer letters should explain the role, the worker’s contributions, the economic or national-interest benefit, the cost of interruption, and the business harm of consular delay. In sensitive sectors – healthcare, infrastructure, defense-adjacent industries, higher education, research, AI, semiconductor manufacturing, energy, logistics, and finance – the record should connect the employee’s continued U.S. presence to concrete U.S. interests.

Employers should also identify employees with pending I-485s, employees about to file, and employees in single-intent categories.

Travel policies should be reviewed because international travel during a pending adjustment case may carry new practical risks if the government begins redirecting cases or if advance parole strategies become less reliable.

I-9 teams should coordinate with immigration counsel to monitor EAD expirations, H-1B/L-1 extension eligibility, and fallback work authorization.

Recommended Immediate Action Steps

Applicants and employers should not reflexively withdraw pending I-485s or switch to consular processing without individualized legal advice.

The memo does not abolish adjustment, and consular processing can create its own hazards: unlawful-presence bars, administrative processing, loss of employment, separation from family, and limited judicial review.

Here’s another problem with consular denial – it is insulated by consular non-reviewability and lacks the same administrative appeal structure available in some USCIS scenarios.

For pending cases, counsel should consider supplementing the record to emphasize lawful status history, economic benefit, hardship, community ties, family unity, medical needs, and the impracticality or danger of consular processing.

For new cases, counsel should evaluate whether to file adjustment, pursue consular processing, delay filing, or preserve nonimmigrant status while waiting for further guidance or litigation. For family-based applicants, special attention should be paid to unlawful-presence consequences before any departure.

For employment-based applicants, maintaining H-1B or L-1 status independently of the pending I-485 may become more important, because adjustment-based EAD and advance parole strategies may carry greater uncertainty.

For humanitarian applicants, filings should emphasize statutory purpose, vulnerability, safety concerns, and why requiring departure would contradict the protective structure of the underlying classification.