FAQ: USCIS Policy Memorandum PM-602-0199 (May 21, 2026) — Adjustment of Status

Please review the below for common questions regarding the May 21, 2026 USCIS policy memo on Adjustment of Status applications. Note that this is an ongoing matter, and the attorneys at Minsky McCormick and Hallagan will continue to advise clients based on the latest information and on a case-by-case basis.

What does the Memo say?

On May 21, 2026, USCIS issued an unsigned, unattributed memorandum (PM-602-0199) reframing how officers exercise discretion over adjustment of status applications. The memo tells officers to decide whether I-485 applicants deserve a green card as a matter of “discretion and administrative grace,” case by case.

Discretion has always been part of adjustment of status. Under INA § 245(a), even an applicant who satisfies every legal requirement must still show he or she merits a favorable exercise of discretion, and the USCIS Policy Manual has described that exercise as “a matter of administrative grace” for years. The memo cites the Policy Manual for this language and does not amend it.

What the memo attempts to do is ignore long standing precedent and analysis of what amounts to favorable discretion. It declares that individuals “paroled into the United States or admitted into the United States as nonimmigrants” are expected to “depart rather than pursue adjustment of status,” and should instead consular process abroad unless they can show extraordinary circumstances. It tells officers to scrutinize equities such as intent at entry, the reasons an applicant did not consular process, immigration compliance history, and family ties.

Most of these factors already live in the Policy Manual’s totality of the circumstances test. For decades, absent serious negatives like a criminal record or fraud, discretion was exercised in the applicant’s favor, and traditional equities such as family unity and long residence were treated as reasons to grant a green card, not deny one. This memo inverts that tradition. It recasts a lawful admission or a grant of parole, followed by an honest application to adjust, as something suspect, and it turns an applicant’s intent at entry into a mark against them.

The government has since walked back the original memo, insisting the discretionary factors have not changed. That much is true, and it is precisely the point. The factors always lived in the Policy Manual. What changed is the instruction to use them against applicants who have the legal avenues to seek permanent residence through Adjustment of Status.

Changes in how Adjustment of Status applications are adjudicated, remains to be seen, as the impact of this memo, if any, continues to be monitored closely by our firm.

What is Adjustment of Status?

Adjustment of Status (AOS) is the process by which an eligible person who is already physically present in the United States can apply to become a lawful permanent resident (green card holder) without having to leave the country. The application is filed using Form I-485, Application to Register Permanent Residence or Adjust Status, and is submitted to U.S. Citizenship and Immigration Services (USCIS). Not all green card applicants meet the criteria for being able to apply through the Adjustment of Status process and should be evaluated closely by our attorneys on a case-by-case basis.

What is Consular Processing?

The alternative to Adjustment of Status is consular processing, in which an applicant leaves the United States and applies for an immigrant visa at a U.S. Embassy or Consulate abroad. Both pathways lead to lawful permanent residence, but AOS has historically allowed eligible applicants to complete the process from within the United States, avoiding the cost, disruption, and family separation that international travel and processing abroad can entail.

What does the law actually say?

The Immigration and Nationality Act (INA §245(a)) states that any non-citizen who has been lawfully admitted for temporary resident status “may apply for adjustment of status.” While adjustment of status is a discretionary benefit, it has never been interpreted as an “extraordinary” form of relief. That characterization appears nowhere in the INA because Congress never intended it. The Memo clearly contradicts the plain reading of the statute and decades of case law and USCIS policy.

When does the Memo take effect?

Apparently, immediately, but USCIS has not yet provided any specific guidance beyond the memo, so confusion remains on how and when it is to be implemented.

Is the Memo legal?

No, and it’s not close. The law is determined by the U.S. Constitution, US Statutes, and then Agency Regulations & Memos. It doesn’t work from the bottom up; Memos don’t trump the Constitution or statute. This is a random, baseless and unlawful attempt to limit adjustment of status through peddling fear and mistruths.

How will USCIS use the Memo?

There is a lot that we still do not know, as USCIS has not yet issued guidance to the public or to its officers on how to implement the memo, other than the recent walk back that the memo is a reminder of existing guidance. Having said that, we know that USCIS officers did ask additional questions during I-485 interviews, including the following:

• Why did you apply for adjustment of status instead of consular processing?
• Why don’t you want to return to your country for consular processing now?
• Are there any factors that would prevent you from pursuing consular processing?
• Do you have any family members still living in your home country?
• What was your intent when you came to the U.S. with your visa?
• What did you do after arriving in the U.S.?
• Who brought you to the U.S.?
• Why did you decide not to return to your country when your period of authorized stay expired and you became out of status (if applicable)?

Additionally, USCIS officers may request additional evidence before approving an I-485, to demonstrate that the applicant warrants a favorable exercise of discretion, especially in cases that involve certain negative facts (e.g. crimes, visa violations, immigration fraud, etc.) Such evidence may include:

• Family ties in the U.S.;
• Paying taxes in the U.S.;
• Stable and long-term employment history in the U.S.;
• Education in the U.S.;
• Community and civic engagement in the U.S.;
• Professional and economic contributions to the U.S.
• National interest considerations (e.g. military involvement, critical work, etc.)
• What actions are in my best interests? Can it be enforced?

The issuance of an unsigned, unattributed memo does not overcome decades of law and regulations explaining how discretion is to be weighed. Having said that, we will evaluate whether, on a case-by-case basis, additional preparation is needed. If it is, we will tell you. If we have not asked for additional evidence, we don’t need it.

How can USCIS do this if it’s not legal?

The government shouldn’t willingly violate the law. Challenging unlawful actions in federal court is something MMH is equipped and able to do where it is in a client’s best interests. We’ll tell you if that’s true for you.

Can we still file new I-485 applications?

Yes. The Memo does not eliminate, suspend, or restrict the filing of I-485 applications. Section 245 of the INA continues to authorize adjustment of status for eligible applicants, and USCIS continues to accept I-485 filings. What the Memo does is signal that USCIS officers may apply greater discretionary scrutiny to those applications, but the right to file remains fully intact. For applicants with strong equities, clean immigration histories, and solid legal grounds for adjustment, AOS remains a viable and legally supported path to permanent residence. The decision of whether to file an I-485 or pursue consular processing should be made on a case-by-case basis in consultation with your immigration attorney, not as a reaction to a policy memo that lacks the force of law.

My I-485 application is already pending, what should I do now?

The Memo does not withdraw, revoke, or automatically deny any pending I-485 application. However, the Memo directs officers to apply heightened discretionary scrutiny to all AOS applications, which means pending cases could face additional questioning or requests for evidence related to the discretionary factors outlined in the Memo. It remains unclear whether and how aggressively USCIS will apply this guidance to cases that were filed before the Memo was issued. We are monitoring adjudication patterns closely and will advise you if any of your pending cases require additional action or documentation.

12. The Walk-Back Statement Issued on May 29, 2026

The government issued a statement, following the outcry of criticism about the new Memo, emphasizing that nothing has changed substantively. Where does that leave us? The original Memo is still in effect, the new statement does not retract the Memo. But we still don’t know how US CIS will implement the thought behind the original Memo.

For Employers, Corporate Counsel, and HR

Q: How does this Memo affect our sponsored employees who have pending I-485 applications?

The Memo does not withdraw, revoke, or automatically deny any pending I-485 application. Your sponsored employees’ applications remain on file with USCIS and will continue to be adjudicated. However, the Memo directs officers to apply heightened discretionary scrutiny to all AOS applications, which means pending cases could face additional questioning or requests for evidence related to the discretionary factors outlined in the Memo. It remains unclear whether and how aggressively USCIS will apply this guidance to cases that were filed before the Memo was issued. We are monitoring adjudication patterns closely and will advise you if any of your pending cases require additional action or documentation.

Q: Should we switch our green card strategy from adjustment of status to consular processing?

Not necessarily, and not reflexively. This is exactly what the Memo is insinuating, and that reaction should not be driven by fear. Adjustment of status remains authorized by federal statute, and there are significant practical advantages to AOS that consular processing does not offer, including the ability for applicants to remain in the United States with their families during processing, continued work authorization through EAD cards, and advance parole travel documents. Consular processing carries its own risks and uncertainties, including extended wait times at U.S. consulates, the possibility of administrative processing delays abroad, and the disruption of removing a key employee from the workplace for weeks or months. The right strategy depends on the individual circumstances of each employee and each case. We will work with you to evaluate whether a shift in strategy makes sense for any particular case, but as a practical matter, we are not recommending any major shifts to any existing corporate immigration policies at this time.

Q: Our employees are on H-1B or L-1 visas: are they treated differently under this Memo?

The Memo acknowledges that H-1B and L-1 visa holders (and their H-4 and L-2 dependents) occupy a unique position because these visa categories expressly permit “dual intent.” This means that those on the H-1B and L-1 (and their dependents) can maintain lawful nonimmigrant status while simultaneously pursuing permanent residence. The Memo states that applying for adjustment of status is “not inconsistent” with maintaining status in a dual-intent category. This is a meaningful distinction, and it suggests that H-1B and L-1 workers may face a somewhat less hostile discretionary analysis than applicants in other visa categories. However, the Memo also cautions that dual-intent status alone is not sufficient to warrant a favorable exercise of discretion. Officers are still directed to weigh all positive and negative factors on a case-by-case basis. In practical terms, your H-1B and L-1 employees who have maintained lawful status, complied with visa conditions, and have strong equities should remain well-positioned for AOS approval , but they should be prepared for possible additional questions or evidentiary requests about why they chose AOS over consular processing.

Q: If our employee has to consular process, how long will they be outside the U.S.?

Timelines for consular processing vary significantly depending on the U.S. Embassy or Consulate involved, the applicant’s country of nationality, and whether the case is subject to administrative processing. In a straightforward case, an employee might be abroad for a few weeks in order to attend the immigrant visa interview and receive the visa. However, if the case is flagged for additional administrative processing (which can occur for applicants from certain countries or in certain fields), the wait can extend to months with little transparency or recourse. These realities should be weighed carefully on a case by case basis before making any decision

Q: What should we be doing right now as an employer?

First, do not panic, and do not make sweeping changes to your immigration program based on a single policy memo. The law has not changed. Second, work with your immigration counsel to review your current portfolio of pending and planned I-485 cases and identify any that may present elevated risk factors under the Memo’s discretionary framework. Third, to the extent possible, continue to extend the underlying nonimmigrant status (e.g. H-1B, L-1, O-1, etc.) for your employees until they get their green card so that they can maintain that status as a safeguard rather than allowing it to lapse after I-485 filing. Finally, communicate with your affected employees. They are reading the same headlines and are likely anxious. Let them know that your company is aware of the guidance, is working with our experienced immigration team, and will keep them informed as the situation develops.

Q: Can we still file new I-485 applications?

Yes. The Memo does not eliminate, suspend, or restrict the filing of I-485 applications. Section 245 of the INA continues to authorize adjustment of status for eligible applicants, and USCIS continues to accept I-485 filings. What the Memo does is signal that USCIS officers will apply greater discretionary scrutiny to those applications , but the right to file remains fully intact. For applicants with strong equities, clean immigration histories, and solid legal grounds for adjustment, AOS remains a viable and legally supported path to permanent residence. The decision of whether to file an I-485 or pursue consular processing should be made on a case-by-case basis in consultation with your immigration attorney, not as a reaction to a policy memo that lacks the force of law.

This information is for general informational purposes only and does not constitute legal advice or create an attorney-client relationship.