What Employers and Foreign Nationals Need to Know
On May 21, 2026, U.S. Citizenship and Immigration Services (USCIS) issued Policy Memorandum PM-602-0199, titled “Adjustment of Status is a Matter of Discretion and Administrative Grace, and an Extraordinary Relief that Permits Applicants to Dispense with the Ordinary Consular Visa Process.” The memo, accompanied by a USCIS news release the following day, reframes the agency’s general approach to adjustment of status under Section 245 of the Immigration and Nationality Act (INA). While the memo does not change the statute or regulations, it directs officers to treat adjustment as an “extraordinary” and disfavored form of relief — and signals that USCIS intends to apply the discretionary component of Section 245 with materially heightened scrutiny.
USCIS Spokesman Zach Kahler framed the policy shift bluntly, telling reporters that, going forward, foreign nationals temporarily in the United States who want a green card will generally be expected to return to their home countries to apply through a U.S. consulate, except in extraordinary circumstances. For employers that sponsor foreign national talent, and for individuals already in the United States who anticipated adjusting status here, the practical implications are significant.
What the Memo Actually Says
PM-602-0199 does not narrow the eligibility criteria for adjustment of status. Instead, it instructs USCIS officers, when adjudicating discretionary Section 245(a) applications, to weigh the agency’s longstanding view that:
- Adjustment of status is a “matter of discretion and administrative grace,” not an entitlement;
- Adjustment is an “extraordinary” mechanism that permits a foreign national to bypass the ordinary consular visa process and obtain lawful permanent residence without leaving the United States;
- Congress intended adjustment to operate as an exception to — not a substitute for — consular processing abroad; and
- The fact that a noncitizen meets the technical eligibility requirements for adjustment is not, by itself, a reason to grant it.
The memo relies on a chain of Board of Immigration Appeals (BIA), Supreme Court, and federal appellate decisions stretching back to Matter of Blas (BIA 1974), which characterized adjustment as relief that “was not designed to supersede the regular consular visa-issuing process or to be granted in non-meritorious cases.”
The most consequential language is USCIS’s affirmation that an applicant whose presence in the United States contravenes the expectation that nonimmigrants and parolees depart at the end of their authorized stay may need to overcome that adverse factor with a showing of “unusual or even outstanding equities.” Notably, the memo states the mere absence of adverse factors does not itself establish such equities.
Discretionary Factors USCIS Will Weigh More Heavily
The memo directs officers, when conducting the discretionary analysis, to consider a totality of circumstances that includes:
- Any violation of U.S. immigration laws or the conditions of an applicant’s prior immigration status;
- Past or current instances of fraud or false testimony in dealings with USCIS or any government agency;
- Whether the applicant’s admission or parole was consistent with the laws, regulations and policies in effect at the time;
- Post-admission conduct inconsistent with the purpose of the nonimmigrant status or parole — or inconsistent with representations made to consular or DHS officers when the visa, admission or parole was requested;
- Whether the applicant has failed to maintain status or has failed to depart at the end of an authorized stay; and
- Whether the failure to depart is connected to an intent to remain in the United States permanently, particularly where the applicant could have pursued the same end through the ordinary consular immigrant visa process.
Officers are also reminded that good moral character, family ties, immigration history, length of residence and humanitarian considerations remain part of the balancing test articulated in Matter of Mendez-Moralez (BIA 1996). Denials based on an unfavorable exercise of discretion must, going forward, include a written analysis identifying the positive and negative factors considered and explain why the negative factors outweighed the positive ones.
Dual Intent Categories Remain — But Status Alone Is Not Enough
Importantly, USCIS expressly acknowledges that filing for adjustment of status is not inconsistent with maintaining nonimmigrant status in a category that permits dual intent, including H-1B and L-1 classifications. The memo also recognizes that certain immigrant categories — those for which only adjustment of status provides a pathway to permanent residence — fall outside the policy’s general presumption against in-country processing.
However, the memo cautions that simply holding lawful status in a dual-intent category is not, standing alone, sufficient to warrant a favorable exercise of discretion. In other words, an H-1B or L-1 worker filing an I-485 should not assume maintenance of valid status will end the discretionary inquiry. Officers will still look at the totality of the applicant’s immigration history and conduct.
Categories Unaffected by the Discretionary Reframing
The memo does not, and cannot, alter the statutory framework for adjustment categories that Congress made non-discretionary. These include, among others:
- Cuban Adjustment Act applicants;
- Adjustment of status for asylees and refugees under INA § 209(a);
- Adjustment under Section 902 of the Haitian Refugee Immigrant Fairness Act (HRIFA); and
- Special Immigrant Juvenile-related adjustments under Section 7611 of the National Defense Authorization Act for Fiscal Year 2020.
For these populations, USCIS must approve the application if statutory and regulatory eligibility is met; the memo’s discretionary framing does not apply.
The memo also signals that USCIS intends to issue additional, category-specific guidance “to certain adjustment of status categories or discrete populations of aliens.” Employers and applicants should expect further policy detail in the coming months, particularly with respect to employment-based filings.
Practical Impact on Employers and Foreign National Employees
The memo’s direct practical effects will depend heavily on how individual USCIS adjudicators apply the new discretionary framework. Several risk areas, however, are now foreseeable:
- Increased adverse discretion denials. Applicants with even technical compliance issues — periods of unauthorized employment, late extensions, status gaps or prior misrepresentations — are at greater risk of receiving an unfavorable exercise of discretion, even where statutory eligibility is plain.
- Longer adjudications and more Requests for Evidence (RFEs). Officers required to perform an articulated balancing analysis on every discretionary case are likely to issue more RFEs seeking documentation of equities and explanations of adverse factors.
- Consular processing as the default alternative. For employees who cannot easily document “unusual or outstanding equities,” consular processing abroad may become the more reliable pathway to permanent residence — but it carries its own risks, including travel bans, security advisory opinions, prolonged administrative processing and the inability to use Advance Parole as a workaround.
- Heightened importance of pre-filing case assessment. Employers and counsel should carefully evaluate any unfavorable factors in an applicant’s immigration history before filing an I-485 and consider whether a robust equities package — family ties, length of lawful status, U.S. tax compliance, employer letters, community involvement — should accompany the filing.
- B-1/B-2, F-1 and other single-intent categories are at greatest risk. Individuals in categories that do not permit dual intent who attempt to adjust status (for example, after marriage to a U.S. citizen) should expect close scrutiny of whether the original entry comports with stated nonimmigrant intent.
What Employers Should Do Now
In the near term, employers sponsoring foreign nationals for permanent residence should:
- Audit pending and planned I-485 filings for any compliance gaps, status irregularities or unfavorable history that could become discretionary issues under the new framework;
- Document positive equities thoroughly at filing — family ties, U.S. tax history, employment continuity, community contributions and length of lawful presence;
- Reassess consular processing as a parallel option for higher-risk cases, particularly where travel and administrative processing risks can be managed;
- Communicate with sponsored employees about expected processing changes, RFE risk, and the importance of maintaining lawful status throughout the I-485 pendency; and
- Monitor for category-specific guidance, which USCIS has indicated will follow.
How Harris Beach Murtha Can Help
Harris Beach Murtha’s Immigration Practice Group is actively analyzing the policy memorandum and counseling employer clients on filing strategy, evidentiary development and consular versus in-country processing decisions under the new discretionary framework. We assist employers and individuals in evaluating risk factors before filing, building robust equities packages, responding to RFEs and Notices of Intent to Deny grounded in adverse discretion, and pursuing alternative pathways where adjustment of status is no longer the most reliable option.
If you have questions or concerns about how this policy may impact your organization or your foreign national employees, 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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