On May 21, 2026, U.S. Citizenship and Immigration Services (USCIS) issued Policy Memorandum PM-602-0199 (Memorandum), reaffirming that adjustment of status (AOS) under Section 245 of the Immigration and Nationality Act (INA) is a matter of discretion and administrative grace, not a right or entitlement. The Memorandum declares as a matter of general policy USCIS’s intention to faithfully apply the AOS statutes consistently with this longstanding understanding. A copy of the Memorandum is available at the following link:

https://www.uscis.gov/sites/default/files/document/memos/PM-602-0199-AdjustmentOfStatusAndDiscretion-20260521.pdf

AOS Background

Generally stated, AOS is the implementation of the final step in the lawful permanent resident process by which an individual who is already physically present in the United States applies for such status / applies for a “green card” without having to leave the country to complete consular processing abroad. Over the past several years, the AOS process has been the most common pathway to permanent residence for certain employer-sponsored individuals as well as spouses and close family members of U.S. Citizens and lawful permanent residents who are already living in the U.S.

Scope of the Memorandum

Importantly, the Memorandum does not create new law or otherwise change underlying regulations. The AOS process has always been a discretionary benefit, and, at the most basic level, the Memorandum purports to remind USCIS adjudicators of this underlying premise. Specifically, the Memorandum directs officers to consider the following:

• AOS is an “Extraordinary” Relief, Not a Substitute for Consular Processing. The Memorandum emphasizes that AOS was never designed to supersede the regular consular visa process and that even applicants who satisfy every statutory eligibility criterion may still be denied AOS in the exercise of discretion.
• Heightened Scrutiny of Discretionary Factors. The Memorandum instructs officers to consider a broad range of factors when exercising discretion, including violations of immigration laws or the conditions of any immigration status held, instances of fraud or false testimony, whether the applicant’s original admission or parole violated applicable laws and policies, and any conduct after admission that was inconsistent with the purpose of the applicant’s nonimmigrant status or parole. An applicant’s failure to depart the United States as expected—particularly when connected to an intention to permanently reside here and where the applicant could have pursued an immigrant visa through the normal consular process—is identified as a highly relevant adverse factor.
• Totality-of-the-Circumstances Analysis. Officers are directed to weigh all positive and negative factors in the record, including family ties, immigration status and history, moral character, and any other relevant considerations, to determine whether the applicant is suitable for permanent residence and whether approval is in the best interest of the United States.
• Dual-Intent Nonimmigrants. The memorandum acknowledges that applying for AOS is not inconsistent with simultaneously maintaining nonimmigrant status in a dual-intent category. However, it cautions that merely maintaining lawful status in such a category is not sufficient, on its own, to warrant a favorable exercise of discretion.

Practical Implications

The Memorandum represents a significant policy signal from USCIS, but, again, it does not change existing law. Key takeaways and items for consideration at this point include at least the following:

• Potential Legal Challenge. It is likely that the Memorandum will be subject to a legal challenge in the near future. This situation will be monitored closely.
• Future Guidance. The Memorandum notes the possibility of issuance of category-specific guidance that could impact the implementation of the policy focus summarized in the Memorandum. Any such future guidance will need to be reviewed for an impact on pending or to be filed cases.
• Pending AOS Cases. On its face, the Memorandum is immediately applicable and there is no distinction drawn between yet to be filed AOS applications and those already pending. For those already pending, at this point, there is no need to change course. In light of the Memorandum, it is possible that a Request for Evidence or a Notice of Intent to Deny could be received for pending cases asking for specific information related to the discretionary factors. Any such request should be responded to in a timely and thoughtful manner. It is highly recommended that anyone with a pending AOS case do everything possible to maintain underlying nonimmigrant status.
• Filing a Future AOS Application. Applicants for AOS should consider including information with an AOS application to evidence positive discretionary factors for AOS adjudication.

As with many recent policy shifts and announcements, the Memorandum leaves many questions unanswered and subject to issuance of further guidance. We will continue to monitor developments related to the Memorandum. If you have questions regarding these changes or would like to discuss strategies for AOS filings, please reach out to a member of the Immigration Practice Group at Koley Jessen.

_{This content is made available for educational purposes only and to give you general information and a general understanding of the law, not to provide specific legal advice. By using this content, you understand there is no attorney-client relationship between you and the publisher. The content should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.}