The New I-485 Reality 1 : USCIS’s New Memo Signals Tougher Scrutiny

On May 21, 2026, United States Citizenship and Immigration Services (USCIS) issued Policy Memorandum PM-602-0199 (the “Memo”), 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 does not change the statutory eligibility requirements for adjustment of status under Section 245 of the Immigration and Nationality Act (INA). However, it makes one point unmistakably clear: adjustment of status through Form I-485 is not an entitlement. USCIS is reaffirming that adjustment of status is a highly discretionary form of administrative relief — one that exists as an exception to the ordinary immigrant visa process abroad, rather than as a replacement for it.

For applicants, the key message is not that I-485 filings are suddenly impossible. Rather, the message is that even applicants who satisfy the legal filing requirements may now face significantly stricter discretionary review. In particular, the Memo appears to encourage officers to treat “remaining in the United States to pursue adjustment of status instead of departing as originally expected” as a more heavily weighted negative factor in discretionary analysis.  

What the Memo Actually Says

1. USCIS Reaffirms That Adjustment of Status Is Discretionary Relief — Not a Right

The Memo repeatedly cites longstanding federal court and Board of Immigration Appeals (BIA) precedent emphasizing that adjustment of status “is a matter of grace, not right.” It also references the well-established principle that adjustment of status is “an extraordinary remedy to be granted only in meritorious cases.”  

In practical terms, USCIS is making clear that adjustment of status should not be viewed as a routine immigration benefit automatically granted whenever technical eligibility requirements are met.

The Memo effectively separates I-485 adjudication into two distinct questions:

• Is the applicant legally eligible to file?

• Even if eligible, does the applicant deserve favorable discretionary approval?

Under this framework, satisfying the statutory requirements of INA §245(a) alone may no longer be enough. USCIS officers are being reminded that they may still deny adjustment of status as a matter of discretion if they believe the applicant does not merit this “extraordinary relief.”  

2. USCIS Frames AOS as an Exception to Ordinary Consular Processing

The Memo places particular emphasis on the idea that adjustment of status inherently allows applicants to bypass the normal immigrant visa process abroad.

USCIS describes adjustment of status as: “an extraordinary form of relief dispensing with ordinary immigration procedures”

and further states that adjustment of status:

“was not designed to supersede the regular consular visa-issuing process.”  

This language is important because it signals how officers are now being encouraged to think about I-485 adjudications. The Memo suggests that the “ordinary” immigration path should generally be understood as immigrant visa processing through a U.S. consulate abroad, while adjustment of status inside the United States should be treated as an exception rather than the default route.

3. Statutory Eligibility Still Exists — But Discretionary Standards Are Tightening

The Memo does not eliminate the underlying legal framework of INA §245(a). Applicants who meet the statutory requirements — such as being physically present in the United States, having been inspected and admitted or paroled, having an available immigrant visa number, and avoiding other grounds of ineligibility — may still legally file Form I-485.  

What has changed is USCIS’s emphasis on the discretionary language contained in the statute itself. The Memo specifically highlights the phrase:

“may be adjusted… in his discretion”

to reinforce that discretionary authority is real, meaningful, and capable of being exercised aggressively. In other words, “eligible to apply” does not necessarily mean “deserving of approval.”

Applicants may now face greater pressure to affirmatively demonstrate why USCIS should exercise favorable discretion in their particular case.

4. Greater Focus on Nonimmigrants and Parole Beneficiaries Expected to Depart

A substantial portion of the Memo focuses on two categories of applicants:

• Individuals admitted in nonimmigrant status;

• Individuals paroled into the United States.

USCIS emphasizes that Congress designed both systems with the expectation that foreign nationals would depart the United States once the purpose of admission or parole had been completed.

The Memo explicitly states:

“aliens are expected to depart the United States when the purpose of their admission or parole has been accomplished.”

It then continues:

“Generally, when a nonimmigrant or parolee fails to depart as required and instead seeks adjustment of status, it contravenes these Congressional expectations.”  

Importantly, this does not mean USCIS is declaring that nonimmigrants or parolees are categorically prohibited from filing I-485 applications. Rather, the Memo indicates that officers may now treat “remaining in the U.S. to pursue adjustment instead of departing” as a more significant negative discretionary factor.

5. The Memo Also Recognizes Important Exceptions

At the same time, the Memo does acknowledge that certain categories are fundamentally different. Specifically, USCIS recognizes:

• Nonimmigrant categories that permit dual intent;

• Certain immigrant pathways where adjustment of status is effectively the only realistic route to permanent residence.  

The first category includes familiar dual-intent classifications such as H-1B and L-1 visas. The Memo explicitly reminds officers that:

“applying for adjustment of status is not inconsistent with simultaneously maintaining nonimmigrant status in a category with dual intent.”

The second category appears more narrowly focused on humanitarian or specially protected pathways — such as refugees, asylum-based applicants, VAWA beneficiaries, and certain U or T visa-related green card processes — where Congress clearly intended adjustment of status to occur within the United States rather than through overseas consular processing.

6. Officers Are Directed to Conduct More Structured Discretionary Analysis

The Memo instructs officers to evaluate adjustment-of-status cases under a “totality of the circumstances” framework, considering all relevant discretionary factors together.

The Memo specifically highlights factors such as:

• Violations of immigration law or prior status conditions;

• Fraud or material misrepresentation;

• Violations of laws or policies applicable at the time of admission or parole;

• Conduct after entry that appears inconsistent with the original stated purpose of entry.

USCIS also stresses that failure to comply with nonimmigrant or parole conditions — including failure to depart when expected — should be treated as “highly relevant” negative discretionary considerations.

The Memo further indicates that officers should place particular emphasis on situations where applicants could theoretically have completed immigrant visa processing abroad but instead chose adjustment of status inside the United States.

7. “No Negative Factors” Alone May No Longer Be Enough

One of the Memo’s most significant practical points comes from its discussion of Matter of Blas. USCIS notes that some applicants may need to demonstrate:

“unusual or even outstanding equities”

sufficient to outweigh negative discretionary considerations. The Memo further emphasizes:

“The absence of adverse factors, by itself, does not demonstrate such unusual or outstanding equities.”  

This language could have major practical implications. It suggests USCIS may no longer view “no obvious problems” as sufficient in certain discretionary cases. Instead, applicants may increasingly need to affirmatively explain why their case deserves favorable treatment as an extraordinary form of relief.

8. USCIS Must Explain Discretionary Denials in Writing

The Memo also requires officers to provide written explanations when denying adjustment of status based on unfavorable discretion.

According to the guidance, denial notices should:

• Identify the relevant positive and negative discretionary factors;

• Explain why the negative factors outweigh the positive equities in the particular case.

Final Thoughts

The significance of this Memo is not that it eliminates a particular green card pathway. Its real importance lies in how it redefines and re-emphasizes USCIS discretionary authority in I-485 adjudications.  

Going forward, applicants may need to think beyond simple filing eligibility and begin evaluating how their broader immigration history, compliance record, entry purpose, and overall equities could affect discretionary review.

In Part Two of our latest immigration policy series — “The New I-485 Reality: What USCIS Is Changing Behind the Scenes” — we will break down how these policy shifts are likely to affect real adjudications and answer two of the most important practical questions employers and applicants are asking right now.

If you have questions about recent immigration policy changes or would like an initial assessment of your case strategy, please contact the ILS Immigration Team at immigrationlaw@consultils.com.

Disclaimer：This article is based on the latest policy information as of May 22, 2026. Given the rapid changes in immigration policies, it is advisable for enterprises to pay close attention to official updates and consult professional immigration lawyers for the latest guidance. Our firm will continue to track policy developments and provide clients with timely and accurate professional services.

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As Partner and Head of Immigration at ILS, Anna advises global employers on all aspects of U.S. business immigration. She helps companies recruit and retain executives and highly skilled professionals essential to their U.S. operations, with experience spanning industries from autonomous driving and biotech, to entertainment, logistics, and manufacturing.

Previously, Anna practiced at leading global law firms and served as in-house counsel and compliance manager in the telecommunications, finance, and gaming industries. This diverse background equips her with practical, cross-industry insights that inform strategic, business-focused immigration solutions.

Email: contact@consultils.com | Phone: 626-344-8949

Melody focuses her practice on U.S. immigration law, advising businesses, investors, and individuals on business immigration, family-based petitions, removal defense, and federal mandamus actions involving immigration delays. Licensed in Georgia, she provides practical counsel in complex immigration matters.

Her business immigration practice includes L-1A, L-1B, E-2, and EB-1C matters for executives, managers, specialized knowledge employees, and investors. She also represents individuals and families in adjustment of status, consular processing, family-based petitions, waivers of inadmissibility, VAWA and U visa matters, religious worker visas, and naturalization applications.

Email: contact@consultils.com | Phone: 626-344-8949