11 Legal Grounds for Challenging USCIS Memo PM-602-0199 in Court

What Changed This Week

Nine days after USCIS issued [Policy Memorandum PM-602-0199](https://www.uscis.gov/sites/default/files/document/memos/PM-602-0199-AdjustmentOfStatusAndDiscretion-20260521.pdf) on May 21, 2026, the immigration bar's initial shock is hardening into a structured legal response. The memo instructs adjudicators to treat adjustment of status (AOS) as "extraordinary relief" — a dramatic departure from decades of practice under which AOS was ordinarily approved absent adverse factors.

This week, several prominent practitioners published detailed legal analyses identifying specific vulnerabilities. [Ron Klasko of Klasko Immigration Law Partners](https://www.klaskolaw.com/aos-sol-no-just-sos/) outlined 11 distinct legal grounds for a federal court challenge on May 28. [Joseph Robinson of Robinson Immigration Law](https://www.jdsupra.com/legalnews/is-adjustment-of-status-dead-or-alive-9628236/) mapped the memo's structural APA exposure on May 26. And [Wendy Barlow of Cohen, Tucker + Ades](https://cohentuckerlaw.com/why-uscis-policy-memo-pm-602-0199-is-facing-an-imminent-federal-court-challenge/) predicted an "imminent federal court challenge" based on overlapping theories.

No lawsuit has been filed yet. But the legal groundwork is being laid systematically, and the arguments are serious.

The Core Theory: APA Notice-and-Comment

The strongest line of attack runs through the Administrative Procedure Act. Under the APA, federal agencies cannot make substantive policy changes that affect the public without formal notice-and-comment rulemaking. USCIS styled PM-602-0199 as internal guidance — a characterization that would sidestep this requirement.

The problem for USCIS: the memo does not merely clarify existing policy. The [USCIS Policy Manual, Volume 7, Part A, Chapter 10](https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-10) currently states that "absent compelling negative factors, officers should exercise favorable discretion and approve the application." PM-602-0199 inverts that presumption, directing officers to look for "unusual or even outstanding equities" before granting AOS. When an agency replaces a default of approval with a standard requiring applicants to demonstrate extraordinary equities, that is a substantive rule change — not guidance.

This exact pattern was tested earlier this year. In Mukherji v. Miller, No. 4:24-CV-3170 (D. Neb., Jan. 28, 2026), a federal court invalidated USCIS's extra-regulatory "final merits determination" framework in EB-1A extraordinary ability cases, holding that the agency had imposed substantive requirements through guidance rather than rulemaking. The structural parallel to PM-602-0199 is direct.

Binding Precedent Klasko Identified

**Ground 1 — Matter of Arai (BIA, 1970).** The Board of Immigration Appeals held in [Matter of Arai, 13 I&N Dec. 494 (BIA 1970)](https://www.justice.gov/sites/default/files/eoir/legacy/2012/08/27/2027.pdf) that AOS should "ordinarily be granted" absent adverse factors. Critically, that decision explicitly overturned an earlier BIA ruling that had characterized AOS as extraordinary relief — the exact characterization PM-602-0199 now resurrects. An agency cannot instruct adjudicators to apply a standard that its own appellate body rejected 56 years ago without formally overruling that precedent.

**Ground 5 — The memo's cited cases are inapposite.** The legal authorities USCIS relies on in the memo involve removal proceedings, waivers, cancellation of removal, and pre-INA cases. None support an "extraordinary" standard for routine AOS. They simply restate the undisputed point that AOS is discretionary, which no one contests.

Four Statutes Showing Congress Expanded AOS

Four separate acts of Congress expanded adjustment of status specifically to make it more available. The memo's "extraordinary relief" standard conflicts with each.

**Ground 7 — INA § 245(k) (1997, expanded 2022).** Congress expressly permitted AOS for employment-based applicants with status violations of up to 180 days. In 2022, Congress extended the same provision to EB-5 applicants. The memo arguably treats those same forgiven violations as discretionary negatives — directly conflicting with the statute.

**Ground 8 — AC-21 (2000).** The American Competitiveness in the 21st Century Act allowed workers with I-485 applications pending 180 or more days to change employers within the same or similar occupational classification. Many AC-21 beneficiaries cannot feasibly use consular processing — they would lose their portability rights. Treating their pathway as "extraordinary" conflicts with the statute Congress enacted to protect them.

**Ground 9 — INA § 245(i) (2000).** Congress deliberately expanded AOS eligibility to individuals with significant immigration violations. The memo's discretionary framework would effectively deny these applicants the relief Congress made them eligible for.

**Ground 10 — Dual intent (1990).** Congress statutorily authorized H-1B and L-1 holders to maintain nonimmigrant status while simultaneously intending to remain permanently. Yet the memo states in footnote 20 that "maintaining lawful status in a dual intent nonimmigrant category is not sufficient, on its own, to warrant a favorable exercise of discretion." This directly conflicts with the express statutory authorization of dual intent.

Procedural and Structural Objections

**Ground 2 — Statutory mischaracterization.** INA § 245 uses the word "may" to grant discretion. It does not use "extraordinary," "extreme hardship," or any heightened standard. Congress used those terms elsewhere in the INA — such as § 212 waiver provisions — when it wanted them. Their absence from § 245 is significant under standard statutory interpretation.

**Ground 3 — Policy Manual inconsistency.** Departing from the published Policy Manual's default of approval without formal rulemaking constitutes a substantive change that triggers APA requirements.

**Ground 4 — INA § 245 requires regulations.** The statute provides that adjustment shall occur "under such regulations as he may prescribe." The word "regulations" creates a textual hook requiring formal rulemaking beyond the APA's general requirements.

**Ground 6 — Consideration of improper factors.** When Congress makes AOS available, simply choosing to use that congressionally enacted pathway cannot be a legitimate basis for discretionary denial. As Klasko argues, courts have policed this principle in other administrative contexts.

The No-Recourse Problem

**Ground 11 — The 78-country immigrant visa ban.** Nationals of 78 countries are currently barred from receiving immigrant visas at U.S. consulates by presidential proclamation. For these individuals, AOS is not one of two options — it is the only option. Courts apply heightened scrutiny when an agency action completely precludes any path to relief rather than merely creating inconvenience.

Robinson's JDSupra analysis places PM-602-0199 within what he calls a "closed loop" of coordinated restrictions: the State Department's January 2026 immigrant visa pause for dozens of countries, USCIS's separate adjudication hold under PM-602-0194, the $100,000 H-1B consular processing fee, and the May 2026 reversion to Final Action Dates. For affected populations, every pathway narrows simultaneously.

What USCIS Will Argue Back

The government's defense will rest primarily on two authorities. Matter of Blas, 15 I&N Dec. 626 (BIA 1974), characterized AOS as a matter of "administrative grace" — but Blas did not impose an "extraordinary" standard. Patel v. Garland, 596 U.S. 328 (2022), reaffirmed the discretionary character of AOS at the Supreme Court level — but did not address the permissible scope of that discretion.

USCIS will also argue the memo is interpretive guidance exempt from APA notice-and-comment. But as Robinson notes, and as the Mukherji court held in a structurally parallel context, guidance that functionally changes the standard of adjudication is a substantive rule regardless of its label. Cohen, Tucker + Ades echoes this: "courts look beyond what an agency labels a document."

What Attorneys Should Know

The litigation infrastructure is forming. AILA has publicly stated that USCIS "is trying to upend decades of processing of adjustment of status." Cohen, Tucker + Ades anticipates that "a coalition of business immigration advocacy groups, universities, and individual plaintiffs" will file in federal district courts in the coming weeks. The most likely venues include the D.D.C. and districts with existing related litigation.

• Preserve every denial notice — PM-602-0199 requires officers to analyze positive and negative factors in writing, creating a paper trail for individual and class challenges
• Object on the record to extra-regulatory requirements, vague standards, and the absence of notice-and-comment rulemaking
• Document the gap between the May 22 USCIS press release (which said AOS would be granted "only in extraordinary circumstances") and the operative memo text (which does not use that exact phrase) — Robinson identifies this gap as "litigable space"
• Prepare stronger affirmative evidence packages demonstrating positive equities: employer need, U.S. ties, community contributions, tax compliance, clean immigration history
• Monitor Mukherji v. Miller for appellate developments — it is the structural analog for any APA challenge to PM-602-0199

What Applicants Should Do

PM-602-0199 is in effect right now. No court has blocked it. While the legal arguments are strong, applicants cannot wait for litigation to resolve.

• Continue filing I-485 applications — withdrawing or delaying forfeits your priority date and queue position
• Build a robust positive-factors package: letters from employers documenting your contributions, evidence of U.S. community ties, tax returns, property ownership, children enrolled in U.S. schools
• If you are a national of one of the 78 countries affected by the immigrant visa ban, document that consular processing is unavailable to you — this strengthens both your individual case and the no-recourse argument for any class action
• Keep your underlying nonimmigrant status current — the memo treats status lapses as "highly relevant" negative factors
• Talk to your immigration attorney about whether premium processing (where available) reduces exposure to the new discretionary framework