The U.S. Citizenship and Immigration Services policy memorandum issued on May 21, 2026 — PM-602-0199 — reframes adjustment of status under Section 245(a) of the Immigration and Nationality Act (INA) as “extraordinary” discretionary relief and signals that USCIS officers should treat consular processing abroad as the preferred default pathway. The memo presents itself as a restatement of long-settled doctrine. It is worth working through the foundations it claims for that restatement because the gap between the doctrine the memo cites and the substantive direction the memo gives officers is meaningful, and it has practical consequences for how counsel should approach pending and future adjustment filings.
This alert walks through the statutory text, the agency precedent the memo relies on, the Supreme Court’s treatment of the same framework, and the empirical record on adjustment of status. The objective is not to argue that adjustment is an entitlement — it is not, and the memo correctly says so. The objective is to put the memo’s discretionary framework alongside the authority it draws from and identify where they diverge.
Where the Memo Rests on Solid Ground
Three propositions in PM-602-0199 are uncontroversial as a matter of black-letter law:
- Section 245(a) is, by its terms, discretionary. The statute provides that an eligible applicant’s status “may be adjusted by [the Secretary], in his discretion.” Eligibility has never been the same as entitlement, and a fully eligible applicant can be denied as a matter of discretion.
- Adjustment of status is an alternative to consular processing. Congress created adjustment in 1952 precisely to spare lawfully present foreign nationals the disruption and cost of leaving the United States to obtain an immigrant visa abroad. The two pathways are statutorily distinct.
- The “administrative grace” language has a real pedigree. It appears in Board of Immigration Appeals (BIA) decisions stretching back at least to Matter of Ortiz-Prieto, 11 I&N Dec. 317 (BIA 1965), and recurs through six decades of agency and federal appellate decisions, including Supreme Court opinions cited in the memo.
To the extent the memo reminds officers and the public that adjustment is discretionary and that eligibility alone is not dispositive, it is reciting law correctly. The doctrinal question is what the discretionary framework actually requires when the agency adjudicates a particular application.
What Matter of Arai and Matter of Blas Actually Hold
The memo’s substantive guidance — particularly its instruction that applicants may need to show “unusual or even outstanding equities” to obtain a favorable exercise of discretion — traces to two BIA decisions: Matter of Arai, 13 I&N Dec. 494 (BIA 1970), and Matter of Blas, 15 I&N Dec. 626 (BIA 1974; A.G. 1976).
A careful reading of those decisions shows a two-part framework, not a single rule:
- Where adverse factors are present, the BIA in Arai held that an applicant may need to offset them with a showing of unusual or outstanding equities. This is the half of the rule PM-602-0199 quotes.
- Where adverse factors are absent, the same passage in Arai — quoted again in Blas at page 641 — provides that adjustment “will ordinarily be granted, still as a matter of discretion.” This is the half of the rule the memo does not quote.
The two halves are not severable. Arai was an attempt by the BIA to bring discipline to a discretionary standard that earlier decisions had left vague, and the rule it articulated was specifically calibrated to the presence or absence of negative factors. The heightened-equities burden in Arai and Blas attaches because the case involves something the adjudicator can fairly weigh against the applicant. It is not a free-floating burden imposed on every Section 245(a) applicant by virtue of choosing to adjust in the United States.
Blas itself illustrates the point. The respondent, Pedro Blas, had misrepresented material facts on his nonimmigrant visa application — including the existence of family members in the United States, his actual employment and the purpose of his trip — and had entered with a preconceived intention to remain. The Attorney General’s denial of discretionary relief was anchored in those misrepresentations. Family equities, the Attorney General reasoned, could not carry the case where the equities themselves were the product of the same course of deception. Blas is a fraud-and-preconceived-intent case, not a clean-record case.
The Cases Cited as Support Largely Involved Serious Adverse Factors
The memo’s footnotes assemble a long list of federal appellate and BIA decisions characterizing adjustment as “extraordinary” or as a matter of “administrative grace.” On the surface, the volume of citations is impressive. The factual postures, however, reveal a recurring pattern: the cases that built the heightened-discretion language were cases with significant negative factors.
Among the authorities the memo cites:
- Kim v. Meese, 810 F.2d 1494 (9th Cir. 1987), involved rescission of a prior grant of permanent residence obtained through a fraudulent marriage.
- Howell v. INS, 72 F.3d 288 (2d Cir. 1995), involved an applicant who had entered the United States using another person’s passport.
- Rashtabadi v. INS, 23 F.3d 1562 (9th Cir. 1994), arose in the context of removal following a grand theft conviction.
- Matter of Marin, 16 I&N Dec. 581 (BIA 1978), and Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996), are not adjustment-of-status cases at all. Marin arose under former INA § 212(c) and involved a drug felony; Mendez-Moralez arose under INA § 212(h) and involved a sexual offense. Both are criminal-waiver balancing decisions whose framework was developed to weigh serious criminal records against countervailing equities — a context materially different from the routine adjustment context.
- Matter of Castillo-Perez, 27 I&N Dec. 664 (BIA 2019), cited for its good-moral-character discussion, involved two DUI convictions in the cancellation-of-removal posture.
- Matter of Briones, 24 I&N Dec. 355 (BIA 2007), involved a recidivist immigration violator and unlawful reentry.
The pattern is consistent. The doctrinal vocabulary the memo uses — “extraordinary,” “administrative grace,” “unusual or outstanding equities” — was developed in cases where the applicant had a real, often serious, adverse factor on the record. Whether the same vocabulary supports applying a heightened-equities burden to an applicant with no fraud, no criminal history, no status violations and an otherwise compliant record is a different question, and one the cited authority does not squarely answer.
The Supreme Court’s Reading in Elkins v. Moreno
In Elkins v. Moreno, 435 U.S. 647 (1978), the Supreme Court had occasion to describe the same Section 245(a) framework. The Court characterized the relevant adverse factors as things such as “entering the United States under fraudulent circumstances or committing crimes while in the United States,” and then stated that, absent such factors, an eligible applicant “could adjust his or her status to that of a permanent resident without difficulty.”
The adjustment-of-status discussion in Elkins is dicta — the case turned on Maryland’s in-state tuition rules for nonimmigrants — and the Court’s language is not binding agency precedent. But it is the Supreme Court reading the same Section 245(a) standard the memo invokes, and reading it to point in a substantially different direction from the one the memo charts. A policy that reframes the operating presumption against in-country adjustment has to be read against that authority.
Congress’s Affirmative Statutory Design
The memo’s organizing premise — that nonimmigrants are expected to depart at the end of their authorized stay, so an attempt to adjust contravenes congressional expectation — does not map cleanly onto the statutory architecture Congress has built since 1952. Several provisions complicate the framing:
- Dual intent (Immigration Act of 1990). Congress expressly codified dual intent for H-1B and L-1 classifications, providing that the pursuit of permanent residence cannot be held against the maintenance of those nonimmigrant statuses. The structure of the employment-based green card pipeline — PERM labor certification, I-140 immigrant petition, I-485 adjustment — assumes the worker is in the United States in valid status throughout the process.
- Section 204(j) portability (AC21, 2000). The American Competitiveness in the Twenty-First Century Act allowed adjustment applicants to change employers under certain conditions while their I-485 remains pending. The provision presupposes — and rewards — in-country adjustment.
- Section 245(i). Although the filing window has long since closed, Section 245(i) was an explicit congressional decision to expand the pool of foreign nationals eligible to adjust in the United States, including those who would otherwise be barred under Section 245(c).
- Section 245(k). Section 245(k) forgives up to 180 days of status violations and unauthorized employment for most employment-based adjustment applicants — a forgiveness Congress built specifically into the in-country adjustment pathway.
Each of these provisions is an affirmative congressional decision to channel categories of foreign nationals toward adjustment of status rather than away from it. PM-602-0199 acknowledges the dual-intent point but then adds that maintaining lawful status in a dual-intent category is “not sufficient, on its own, to warrant a favorable exercise of discretion.” That phrasing, taken alongside the rest of the memo, places a discretionary thumb on the scale against the very pathway Congress designed for the H-1B and L-1 populations.
The Empirical Picture
Whatever the appropriate doctrinal label, adjustment of status is not, as a practical matter, a marginal pathway. According to the Department of Homeland Security’s Office of Homeland Security Statistics:
- In fiscal year 2023, of approximately 1.17 million new lawful permanent residents, roughly 52 percent obtained status through adjustment in the United States rather than through consular processing.
- In fiscal year 2022, the adjustment share was approximately 54 percent.
- In fiscal year 2021, with consular operations affected by the pandemic, the adjustment share rose to roughly 69 percent.
A mechanism through which the majority of new permanent residents obtain status is not a deviation from the ordinary course of the immigration system. It is the ordinary course for most of the people the system processes.
Practical Implications for Employers and Counsel
For employers and adjustment-of-status applicants, the doctrinal questions discussed above are not academic. They suggest several practical considerations:
- Heightened RFE and NOID risk in clean cases. Officers applying PM-602-0199 to status-compliant applicants without adverse factors will, under the memo, be asked to articulate a balancing analysis even where the case law would suggest none is required. Expect more Requests for Evidence (RFE) and more Notices of Intent to Deny (NOID) premised on a perceived insufficiency of “equities” — including in cases that historically would not have generated either.
- Documentation of equities at filing. For new I-485 filings, build the equities record in the original submission rather than waiting for an RFE. Family ties, U.S. tax compliance, length of lawful status, contributions to the community, dependents, employer letters and the worker’s compliance history are all relevant.
- Preserve the record for potential challenge. Any denial grounded in an unfavorable exercise of discretion will, under the memo, include a written articulation of positive and negative factors. That articulation creates a record. Where a denial appears to misapply the Arai-Blas framework — particularly by treating in-country adjustment itself as the adverse factor — preservation of that record is critical to any motion to reopen, administrative appeal or federal court challenge.
- Litigation is foreseeable. Substantive policy changes packaged as restatements of existing law have, in prior administrations, been subjected to Administrative Procedure Act challenges. Although INA 242(a)(2)(B) limits judicial review of individual discretionary denials, agency-wide policy shifts that misread underlying authority have been challenged on broader grounds. Whether and where such challenges materialize will be worth monitoring.
- Consular processing is not always the better alternative. Even with the new policy, the consular route carries its own risks — unlawful presence bars under INA § 212(a)(9)(B), administrative processing under INA § 221(g), security advisory opinions and country-specific consular delays. The right pathway in a given case is a function of the applicant’s full record and risk profile, not a default.
How Harris Beach Murtha Can Help
Harris Beach Murtha’s Immigration Practice Group is closely tracking the implementation of PM-602-0199 and the additional category-specific guidance USCIS has indicated will follow. We are advising employers and individual applicants on filing strategy under the new framework, building equities packages calibrated to the doctrinal record discussed above, responding to RFEs and Notices of Intent to Deny grounded in adverse-discretion theories, and evaluating whether consular processing or in-country adjustment is the lower-risk pathway in a given case.
If you have questions about how the new policy may affect a pending or contemplated adjustment of status application, please contact attorney L.J. D’Arrigo at (518) 701-2770 and ldarrigo@harrisbeachmurtha.com or the Harris Beach Murtha attorney with whom you most frequently work.
This alert is not a substitute for advice of counsel on specific legal issues.
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