NewsFlash! USCIS Reinforces that Adjustment of Status is Discretionary – Not a Right

On May 21, 2026, the U.S. Citizenship and Immigration Services (USCIS) issued Policy Memorandum PM-602-0199, reminding its officers and the public that adjustment of status (AOS) under INA § 245 is an act of administrative grace, not an entitlement. Even applicants who satisfy every statutory eligibility requirement are not guaranteed approval. This memo signals that USCIS intends to apply heightened scrutiny in green card adjudications going forward.

What the Memo Says

The USCIS reaffirms the longstanding legal principle, rooted in Board of Immigration Appeals (BIA) precedent dating back to Matter of Blas (1974), that AOS is an “extraordinary” form of relief that allows an applicant to skip the ordinary consular immigrant visa process without leaving the United States. Because it circumvents the standard pathway to permanent residence, USCIS stresses it was never designed to be freely granted and must be reserved for meritorious cases.

The memo emphasizes that the burden of proof rests squarely on the applicant to demonstrate why a favorable exercise of discretion is warranted.

Key Factors Officers Will Weigh

The memo instructs USCIS officers to consider the totality of the circumstances, including:

• Immigration compliance history: violations of nonimmigrant status conditions or parole terms are treated as significant negative factors
• Failure to depart: if an applicant remained in the U.S. beyond the authorized period rather than pursuing consular processing abroad, this weighs against them
• Fraud or misrepresentation: any prior false testimony or fraud with USCIS or any government agency
• Whether the original admission or parole was lawfully obtained under the laws and policies in effect at the time
• Conduct inconsistent with visa or parole purpose: especially activity that suggests the applicant always intended to remain permanently, when they could have pursued an immigrant visa abroad
• Family ties, moral character, and other positive equities: these must be weighed against the negatives, but the absence of adverse factors alone is not sufficient to show the “unusual or outstanding equities” needed to tip the balance

Important Note on Dual-Intent Visa Holders

USCIS clarifies that maintaining lawful status in a dual-intent nonimmigrant category (such as H1B or L-1) is not, by itself, enough to warrant a favorable exercise of discretion. Officers still may deny AOS even for applicants in valid status.

New Denial Notice Requirement

When USCIS denies an AOS application based on an unfavorable exercise of discretion, the denial notice must now include a written analysis identifying the positive and negative factors considered and explaining why the negative factors outweigh the positive ones.

What this Means for Applicants

This memo is a strong signal that the USCIS will more freely use its discretionary authority to deny I-485 applications even from otherwise-eligible applicants. Those who entered on parole, overstayed a visa, worked without authorization, or have other immigration compliance issues face elevated risk. USCIS has also indicated it may issue future category-specific guidance targeting particular AOS pathways or populations.

If you have a pending or planned I-485 application, we strongly encourage you to consult with an experienced immigration attorney to assess your case in light of this new policy.

This article is for informational purposes only and does not constitute legal advice.

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