Employer Advisory: USCIS Policy Memorandum on Adjustment of Status Discretion (PM-602-0199)

On May 21, 2026, USCIS issued Policy Memorandum PM-602-0199 reaffirming that adjustment of status (Form I-485) is a discretionary immigration benefit—not an entitlement—and has historically been treated as an extraordinary form of relief allowing eligible individuals to apply for permanent residence from within the United States instead of through the normal immigrant visa process at a U.S. consulate abroad.

Importantly, the memorandum does not create new eligibility requirements or prohibit adjustment of status filings. Rather, it reiterates longstanding legal principles that USCIS officers retain broad discretion in adjudicating adjustment applications and may deny cases even where the applicant otherwise meets the technical eligibility requirements.

The memo signals that USCIS intends to apply heightened discretionary scrutiny in cases where an applicant’s conduct appears inconsistent with the purpose of their temporary admission, parole, or nonimmigrant status. USCIS specifically emphasizes factors such as maintenance of lawful status, unauthorized employment, overstays, immigration violations, compliance with admission terms, and evidence suggesting preconceived immigrant intent.

Categories Potentially Facing Increased Scrutiny

USCIS appears likely to focus increased scrutiny on the following groups:

• F-1 Students
  • Particularly where there are concerns involving immigrant intent at entry, rapid transition to permanent residence processes, status violations, Day-1 CPT arrangements, or unauthorized employment.
• Parole-Based Adjustment Applicants
  • Including certain humanitarian parole populations where USCIS may question whether adjustment is being used in place of traditional consular processing.
• Applicants with Status Violations
  • Unauthorized employment
  • Overstays
  • Failure to maintain nonimmigrant status
• Cases Involving Potential Preconceived Immigrant Intent
  • Especially in classifications that do not permit dual intent.
• Applicants with Conduct Inconsistent with the Purpose of Admission
  • USCIS specifically references failures to depart after completion of the purpose of admission or parole as a potentially adverse discretionary factor.

Categories Likely Less Impacted

The following categories appear comparatively better positioned under the memorandum:

• H-1B and L-1 Nonimmigrants
  • USCIS expressly acknowledges that dual-intent classifications remain compatible with pursuing adjustment of status.
• Employment-Based Applicants Maintaining Continuous Lawful Status
  • TN, O-1, E-3, H-1B, E-2 visa holders should work with their employer and counsel to monitor the memorandum’s impact on these cases as they may receive additional scrutiny.
  • Particularly individuals with long-term H-1B or L-1 compliance and clean immigration histories.
• Immediate Relatives of U.S. Citizens
  • Existing statutory exemptions for certain status violations remain unchanged.
• Humanitarian and Statutorily Protected Categories
  • Refugees
  • Asylees
  • VAWA-based applicants
  • Special Immigrant Juveniles (SIJs)
  • Certain mandatory adjustment categories

Practical Employer Considerations

Employers sponsoring foreign nationals should consider:

• Maintaining thorough documentation of lawful status maintenance and employment authorization history.
• Carefully evaluating the timing of permanent residence filings for F-1 students and other non-dual-intent classifications.
• Assessing whether transitioning employees to H-1B or another dual-intent category may reduce adjustment-related risk.
• Preparing employees for the possibility of increased Requests for Evidence (RFEs), Notices of Intent to Deny (NOIDs), and broader discretionary review during I-485 adjudications.

Conclusion

This memorandum largely serves as a reaffirmation of USCIS’s longstanding position that adjustment of status is discretionary and not guaranteed solely because an applicant satisfies the baseline eligibility requirements. While the memo does not eliminate adjustment eligibility for employment-based applicants, it signals that USCIS may more aggressively scrutinize applicants whose immigration history suggests inconsistencies with the purpose of their temporary admission or parole. 

We expect that litigation will ensue because adjustment of status is specifically included in the Immigration and Nationality Act as an alternate to Consular Processing at a Consulate or Embassy abroad.

Applicants for adjustment must however be extremely diligent when applying and must follow all regulations regarding intent. Furthermore, they must ensure compliance with terms of nonimmigrant visas requiring an unrelinquished domicile abroad.