Immigration Policy Update: Adjustment of Status Policy Memorandum Impacts Employers and Individuals

If your US green card application is pending, or if you are planning to apply for a green card soon, a new government policy memorandum issued two weeks ago may impact how your case is decided. The good news: The law has not changed, and most applicants who have entered the USA lawfully and maintained their visa status are on solid ground for approval.

On May 21, 2026, US Citizenship and Immigration Services (“USCIS”) issued a policy memorandum (PM-602-0199) to “remind” USCIS examiners that to grant applications for adjustment of status to permanent resident is a matter of discretion. “Adjustment of status” is the process through which a person who arrived in the United States lawfully in a temporary visa status requests permanent resident status – the green card – within the borders of the United States. The alternative to an application for adjustment of status within the United States is to apply for an immigrant visa (the green card) outside the United States at a US consulate abroad, which is called “consular processing.¹ “Adjustment of status” was enacted by United States Congress in 1952 and is found at Section 245 of the US Immigration and Nationality Act (“INA”). Foreign persons are eligible for adjustment of status if they have been inspected at a US border crossing point and admitted or paroled into the United States. To be eligible to apply for adjustment of status, one must have maintained their temporary, lawful US immigration status at all times, with a few narrow, carved out exceptions. The lawful permanent residence is not a “right” but a privilege granted to the applicant; so, the approval of an adjustment of status application is discretionary. This USCIS Policy Memorandum PM-602-0199 does not change the law: Eligible persons may apply to the USCIS for adjustment of status.

The Policy Memorandum PM-602-0199 characterizes approval of an adjustment of status application as “extraordinary relief.” The Policy Memorandum claims² that Congress expects foreign persons to depart once they fulfill the purpose their temporary visa status rather than apply for adjustment of status.

So, PM-602-0199 instructs USCIS adjudicators to review the totality of circumstances of the applicant to decide whether the applicant deserves “extraordinary relief” from the burden of consular processing abroad for their green card. The USCIS will weigh positive factors against negative factors in each adjustment of status application³. Positive factors include:

• Maintaining underlying temporary visa status throughout the adjustment of status application period;
• Maintaining a “dual intent” visa status (H, L, O or E);
• Working in the US national interest which includes presenting an economic benefit (EB-1, EB-2, or EB-3)
• US family ties
• Good moral character which includes civic and community activities.

In the totality of circumstances analysis, positive factors will be balanced against negative factors. Negative factors include

• Violations of immigration law or failure to maintain conditions of a prior status
• Fraud or false testimony in dealings with USCIS or any government agency
• Conduct inconsistent with US admission or parole
• Failure to depart when the purpose of admission was accomplished
• Preconceived intent to immigrate or intent to circumvent the ordinary consular process

In the fortnight since PM-602-0199 was published, USCIS officers have begun to ask questions like:

1. Why did you apply for adjustment of status instead of consular processing?
2. What factors prevent you from consular processing for your immigrant visa?
3. What family do you have here in the USA?
4. What community ties do you have in the USA?
5. Why did you remain in the US after your temporary status expired?

Practical Tips for Applicants

In light of PM-602-0199 and the new questions USCIS officers are asking, here are several steps applicants and their employers can take now to strengthen their cases:

• Document your lawful status history. Gather records showing you maintained valid status throughout your time in the U.S. This is one of the strongest positive factors an adjudicator can weigh in your favor.
• Business, Employment, and Skills. A long history of stable US employment, business ties, and investment or property in the United States are favorable factors. Be prepared to summarize your career and its impact for the USCIS examiner. PM-602-0199 states that work in the US national interest is highly valued in favor of a grant of discretion in this process; so, if you are applying as a person working in the US national interest (EB-2/NIW) or of extraordinary ability (EB-1-1), you are on solid ground. Similarly, if you are creating US jobs or fostering US excellence in the global market (EB-1-b, EB-1-c, EB-5), you are on solid ground, too. Likewise, if you are the beneficiary of a PERM-based I-140 approval (EB-2, EB-3), you are working in the US national interest because the PERM process is in the US national interest. Finally, religious workers (EB-4) are working in the US national interest too, as proclaimed by presidential order last year.
• Prepare a clear explanation of why you are seeking adjustment of status rather than consular processing. USCIS officers now often ask this question. Have a thoughtful, honest answer ready. It should be the length of an “elevator speech.” What would international travel to consular process cost you? Your work and your life would be interrupted for about a month to travel abroad, interview for the green card at a US consulate, and return. Consider the impact of consular processing on your own work and on your team at work; on your children’s study and their friendships or clubs or teams; on your spouse’s work and social commitments, too. List your volunteer commitments in your community, and other legitimate reasons, that make a meaningful difference to the lives of others and your own.
• Highlight your community standing and good moral character. Include volunteer work you have done in your community.Although the Policy Memorandum says adjustment of status is “extraordinary relief,” DHS recently said, “This was just a reminder to offices of their discretionary authority which has always existed on a case-by-case basis,”

If you have questions about how PM-602-0199 may affect your pending or planned adjustment of status case, we invite you to reach out to us directly. We are available to consult with clients and prospective clients about their individual circumstances and the best path forward.

Margaret Holland Sparages
Chair, Immigration Practice, Brooks & DeRensis, PC

 

¹ “Consular Processing” procedures are found in the Immigration & Nationality Act at Section 202.
² USCIS cites a series of Board of Immigration Appeals, Supreme Court and circuit court cases to support its interpretation of Congressional intent but many of these cases do not involve adjustment of status and are of limited relevance.
³ Note, USCIS has always balanced positive factors against negative factors in adjustment of status applications to support its grant or denial of the application as a matter of discretion.