USCIS Policy Memorandum · Effective May 21, 2026

PM-602-0199: Adjustment of Status is Now Discretionary Relief

On May 21, 2026, 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 does NOT change statutory eligibility under INA §245 — but it instructs adjudicators to treat AOS as disfavored discretionary relief and to write an equities analysis on every denial. For H-1B workers with approved I-140s, this is the most consequential administrative action of 2026 to date.

What the memo actually says

The memo is binding policy guidance for USCIS adjudicators. Its operative instructions:

1. AOS is to be treated as “extraordinary discretionary relief” — not a default benefit available to any statutorily-eligible applicant.
2. Every denial must include a written equities analysis weighing positive and adverse factors.
3. Choosing AOS in lieu of consular processing “may be an adverse factor” in the discretionary calculus — especially where consular processing is feasible.
4. Dual intent under INA §214(b) and §214(h) is preserved for H-1B, L-1, and other dual-intent classifications. But the memo states that maintaining dual-intent status “alone is not sufficient” to warrant a favorable exercise of discretion.
5. The memo applies prospectively (per practitioner consensus from Murthy, Fragomen, WR Immigration, Harris Beach Murtha, and Erickson) to all pending and future I-485 adjudications.

Adverse factors USCIS will weigh

The memo enumerates adverse factors adjudicators are instructed to weigh. These are not new bars to AOS — eligibility is unchanged — but they reduce the likelihood of a favorable discretionary grant:

• Past status violations (overstay, failure to maintain status)
• Unauthorized employment
• Fraud or material misrepresentation on any prior immigration form
• Criminal history, including DUI
• Failure to depart the U.S. at the end of an authorized stay
• Conduct inconsistent with the original entry purpose
• Public-charge concerns (cash welfare, long-term institutional care)
• Prior immigration filing history (RFEs, denials, NOIDs)
• Choosing AOS over consular processing where CP is feasible

Positive equities that count

The memo identifies positive factors that support a favorable exercise of discretion:

• Length of continuous lawful residence in the U.S.
• Family ties to U.S. citizens and lawful permanent residents (especially USC spouse, USC children, USC parents)
• U.S. tax history (years of W-2 + tax filings)
• Employment continuity and professional contributions
• Charitable, religious, and civic involvement
• Humanitarian factors (medical hardship, persecution risk)
• Caregiving for U.S.-based family members
• Demonstrated respect for the immigration laws over time

The dual-intent carveout

The memo expressly preserves dual intent for H-1B and L-1 visa holders. This means H-1B holders with approved I-140s can still file I-485 — Congress codified this at INA §214(b) and §214(h), and the memo does not (and could not) override the statute.

The hedge: the memo explicitly states that “maintaining dual-intent status alone is not sufficient” to warrant favorable discretion. In practice: H-1B workers need to do MORE than rely on technical eligibility — they need to affirmatively document the positive equities.

What this means for laid-off H-1B workers

The laid-off H-1B worker with an approved I-140 in the 60-day grace window now sits at the intersection of two adverse-factor flags: “failure to maintain status risk” (you no longer have an employer) and “conduct inconsistent with entry purpose” (your H-1B was tied to a specific employer that no longer employs you). The technical answer is that you remain in status through the 60-day grace period — the equity answer is that you need to demonstrate forward momentum (transfer in process, B-2 backstop filed, or affirmative concurrent H-1B on file) so the equities memo can frame the grace period as a transition, not a drift.

What we’re NOT certain about

• Implementation timing. USCIS has not formally stated whether the memo applies to I-485s already filed and pending. Practitioner consensus is that it does, but no officially-confirmed transitional guidance exists.
• Service-center variance. Discretionary adjudication will likely vary by service center. Patterns will take 3-6 months to emerge.
• Litigation status.No public lawsuit challenging PM-602-0199 has been filed as of May 24, 2026, but given the memo’s breadth, AILA-backed litigation is possible.

What to do now

1. Run the AOS Equities Builder. Free preview gives you your score plus top positives and top risks. Priority Plan unlocks the full cover-letter scaffold.
2. Gather documentary evidence NOW. Each positive equity needs an exhibit (tax transcripts, charity letters, community-membership documents). The cover letter is the argument; the exhibits are the proof.
3. Engage an AILA attorneybefore filing. The equities cover letter is what the attorney refines into the final equities memorandum. They’ll know your service center’s patterns and any local adjudication tendencies.
4. Check your priority date on the Visa Bulletin tracker. June 2026 brought sharp retrogression for India EB-1 and EB-2. If your date is current, the discretionary scrutiny applies; if it’s not current, you have time to build the equities record before filing.

This page summarizes USCIS policy guidance. It is not legal advice. Adjudication patterns under PM-602-0199 are emerging. Consult an immigration attorney before filing I-485.