USCIS Reaffirms Adjustment of Status as Discretionary Benefit
USCIS has officially reiterated that adjustment of status is a discretionary decision, not a right.
Why it matters: This clarification raises the bar for immigrant applicants, emphasizing that statutory eligibility alone does not ensure approval. Immigration lawyers and in-house counsel must now address heightened scrutiny and prepare for potential denials based on discretionary grounds.
- USCIS issued Policy Memorandum PM-602-0199 on May 21, 2026, reaffirming adjustment of status as discretionary.
- Officers must assess applications case-by-case, weighing all factors under Section 245 of the INA.
- Maintaining lawful status in categories like H-1B or L-1 is not enough to guarantee approval.
- Written denials must detail why negative factors outweigh positives when discretion is exercised against applicants.
On May 21, 2026, U.S. Citizenship and Immigration Services (USCIS) released Policy Memorandum PM-602-0199, which reaffirms the discretionary character of adjustment of status.
- According to the guidance, adjustment under Section 245 of the Immigration and Nationality Act is "an extraordinary form of relief that permits applicants to dispense with the ordinary consular visa process."
- USCIS instructs adjudicating officers to consider the totality of circumstances, including immigration history, moral character, and family ties, on a case-by-case basis. The memo states, "the burden of proof rests squarely on the applicant."
- Maintaining status in certain dual-intent nonimmigrant categories—such as H-1B or L-1—alone does not tip the balance toward a favorable exercise of discretion for green card eligibility.
- The memorandum underscores that discretion “should be granted sparingly,” highlighting that adjustment is not meant to supplant traditional consular processing abroad. (Clark Hill)
For practitioners, the most operational change is that officers must now issue written denials that specifically outline why negative considerations outweighed any positive factors. This is designed to provide applicants clarity on the basis for denial, further underlining that adjustment of status is never automatic—even for otherwise eligible applicants.
By the numbers:
- May 21, 2026 — Date USCIS issued Policy Memorandum PM-602-0199
- Section 245 — Relevant part of the Immigration and Nationality Act
Yes, but: The memorandum does not provide detailed criteria for what constitutes sufficient positive factors or 'extraordinary circumstances.'