USCIS Memo PM-602-0199: AOS Is Now 'Extraordinary Relief'

What Happened

On May 21, 2026, USCIS signed 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 agency publicly announced it the following day with a press release stating that USCIS 'will grant adjustment of status only in extraordinary circumstances.'

The distinction between the press release and the memo itself is critical. The phrase 'only in extraordinary circumstances' does not appear in the body of the policy memorandum. As the law firm LexElite noted in its analysis: 'The press release and the memo say two different things. Most of the alarm comes from a press release that says more than the memo does.' The operative policy — what officers will actually apply — is the memo, not the press release headline.

What the memo does is reframe adjustment of status under INA § 245(a) as an 'extraordinary act of administrative grace' rather than a routine immigration benefit. It directs officers to apply heightened discretionary scrutiny to every I-485 application, requires applicants to affirmatively demonstrate positive equities (not merely the absence of adverse factors), and elevates 'failure to depart as expected' to a 'highly relevant' negative factor. The memo relies on Matter of Blas, 15 I&N Dec. 626 (BIA 1974), which called AOS an 'extraordinary' remedy, and Patel v. Garland, 596 U.S. 328 (2022), which described relief from removal as 'a matter of grace.'

Critics — including prominent immigration law scholar Cyrus Mehta — argue the memo 'undoubtedly deliberately' omitted the foundational BIA precedent Matter of Arai, 13 I&N Dec. 494 (BIA 1970), which established that 'in the absence of adverse factors, adjustment will ordinarily be granted.' The memo's framing directly contradicts that long-standing standard. Legal challenges are anticipated, likely grounded in the Supreme Court's 2024 Loper Bright decision abolishing Chevron deference, which may enable courts to independently evaluate USCIS's interpretation of the word 'may' in INA § 245(a).

Who's Affected

The memo applies to every pending and future I-485 adjustment-of-status application — regardless of when it was filed. USCIS provided no implementation grace period and no grandfathering for cases already in the queue. As the law firm Quarles noted, the policy 'applies retroactively to already-pending applications lacking grandfathering provisions,' contrasting it with the August 2025 CSPA age-calculation update, which did include grandfathering. Visaverge's analysis confirmed: the memo applies 'at final adjudication,' meaning it will govern whenever an officer picks up the case for decision.

For employment-based applicants, the impact breaks down by visa category and risk level. H-1B and L-1 holders are in a relatively stronger position because Congress explicitly designated these categories as dual-intent under INA § 214(b) — pursuing a green card while on H-1B or L-1 is statutorily permitted. But the memo expressly states that 'maintaining lawful status in a dual intent nonimmigrant category is not sufficient, on its own, to warrant favorable exercise of discretion.' Officers will still conduct a full discretionary analysis.

O-1 holders face greater uncertainty. The O-1 visa is not explicitly designated as dual-intent in the INA, though USCIS Policy Manual guidance and 8 C.F.R. § 214.2(o)(13) do permit multiple intent. As Boundless observed, it is 'unclear how the memo may be applied' to O-1 holders. Attorneys representing O-1 clients approaching the I-485 stage should prepare detailed discretionary equity packages.

PERM labor certifications and I-140 immigrant petitions are not adjustment-of-status applications and are not affected by this memo. The earlier stages of the employment-based green card process — employer recruitment, PERM filing, I-140 petition — remain unchanged. Employers should continue filing these normally. The impact arrives at the I-485 stage, when the applicant seeks to adjust status from their current nonimmigrant visa to lawful permanent resident.

• H-1B and L-1 holders: Lower risk due to dual-intent protection, but NOT exempt from heightened discretionary review. Officers must still weigh positive and negative factors.
• O-1A and O-1B holders: Elevated uncertainty — not classified as dual-intent, memo application unclear. Consult an attorney before filing I-485.
• EB-1 applicants (extraordinary ability, outstanding researchers, multinational managers): Affected at the I-485 stage. EB-1A self-petitioners who entered on non-dual-intent visas face higher scrutiny.
• EB-2 applicants (including NIW): Affected at I-485 stage. NIW self-petitioners on non-dual-intent status carry additional risk.
• EB-3 applicants (professionals, skilled workers, Schedule A): Affected at I-485 stage. Schedule A nurses and physical therapists in lawful dual-intent status are lower risk.
• India and China backlog applicants: Disproportionately impacted. Multi-decade waits mean applicants rely on AOS-based EADs and Advance Parole for years — the memo threatens this framework without offering a practical consular processing alternative.
• Derivative beneficiaries (spouses and children): Equally affected. H-4 employment authorization depends on the H-1B/green card framework; disruption flows through.

What the Memo Changes — and What It Doesn't

The memo makes six concrete changes to how USCIS officers approach I-485 adjudications. First, it reaffirms — and materially tightens — the principle that AOS is discretionary, not an entitlement. Second, it directs officers to treat AOS as 'extraordinary' relief that should be 'granted sparingly.' Third, it elevates 'failure to depart as expected' to a 'highly relevant' adverse factor. Fourth, it establishes that the absence of negative factors alone is insufficient — applicants must affirmatively show positive equities. Fifth, it signals that preconceived intent to immigrate on a non-dual-intent visa is adverse. Sixth, it requires officers to write detailed discretionary analyses in denial notices, explaining how positive and negative factors were weighed.

The memo does NOT repeal or amend INA § 245, does not eliminate any green card eligibility category, does not prohibit I-485 filings, does not create new statutory eligibility requirements, and does not override dual-intent doctrines for H-1B and L-1 workers. It also does not affect PERM labor certifications, I-140 petitions, INA § 245(i), § 245(k) (covering status gaps under 180 days for employment-based applicants), or non-discretionary adjustment provisions for refugees under INA § 209(a). The memo is an internal policy instruction to USCIS officers — it is not binding on Immigration Courts.

The written denial requirement is a double-edged development. On one hand, it creates a reviewable record that attorneys can use to identify errors and build motions to reopen or reconsider. On the other hand, Patel v. Garland limits federal court jurisdiction over factual findings in AOS decisions, and 8 C.F.R. § 245.2(a)(5)(ii) provides no administrative appeal of I-485 denials. As LexElite warned: 'The government is now telling its officers to use their discretion more actively, while the courts are largely unavailable to review how that discretion is exercised.'

What Attorneys Should Know

The statutory foundation sits at INA § 245(a), which uses the word 'may' to authorize the Attorney General (and by delegation, USCIS) to adjust status. The memo interprets 'may' as conferring broad discretion to deny even when all eligibility requirements are met. Critics led by Cyrus Mehta argue this interpretation is 'not only illogical, but contrary to the meaning of the statute and to longstanding USCIS policy,' noting that Congress's 1952 legislative history (House Report No. 1365, 82d Cong.) described AOS as 'specifically devised to obviate the need for departure and reentry.' The Chodorow/LawAndBorder analysis goes further, calling the memo's claim to merely 'remind officers' of longstanding practice a mischaracterization: the memo 'actually changes policy' while presenting itself as clarification.

The memo's reliance on Matter of Blas (1974) and deliberate omission of Matter of Arai (1970) is the central analytical tension. Matter of Arai held that 'in the absence of adverse factors, adjustment will ordinarily be granted' — establishing approval as the norm when no negatives exist. The memo inverts this by requiring affirmative positive equities even absent adverse factors. Attorneys should cite Matter of Arai prominently in discretionary equity arguments and in any litigation challenging the memo.

The interaction with the AC21 portability framework deserves particular attention for employment-based practitioners. Filing an I-485 triggers AC21 protection under INA § 204(j), allowing workers to change employers or accept promotions without restarting their green card process. By signaling that I-485 filing invites heightened scrutiny, the memo may deter workers from filing the very application that grants statutory portability rights. Non-filers lose portability entirely. This creates what immigration.com termed a paradox: 'Denying adjustment creates the very population [the policy] purports to address.'

The H-1B extension paradox is equally significant. Congress created H-1B extensions beyond the six-year cap under AC21 specifically to accommodate employment-based green card backlogs. The implicit Congressional bargain: pursue your green card, and the H-1B remains valid. The memo now treats exercising this statutory right — remaining in the U.S. to adjust status — as evidence that an applicant failed to depart as expected, a 'highly relevant' adverse factor.

For India and China EB backlog clients, the practical impossibility of consular processing must be documented in every filing. Mumbai H-1B visa interview waits exceed 200 days. The State Department laid off over 1,300 employees since January 2025, severely reducing consular capacity. And for nationals of the 75 countries subject to the Trump administration's immigrant visa processing pauses, consular processing is not merely inconvenient — it is functionally unavailable. The memo presents consular processing as the 'ordinary alternative' without acknowledging these realities. Build this into your discretionary equity argument.

What Applicants Should Do

If you have a pending I-485 application, do not withdraw it. Withdrawal forfeits your priority date, terminates your EAD and Advance Parole, and eliminates your AC21 portability rights. The memo does not prohibit AOS approvals — it raises the bar, but cases with strong equities will continue to be approved.

If you are preparing to file an I-485 and your priority date is current, proceed — but build your filing differently than you would have six months ago. As LexElite advised: 'Green card applications must now be built like contested matters rather than treated as administrative paperwork.' That means every I-485 filing should include a comprehensive discretionary equity statement addressing both positive factors and any potential negative factors head-on.

The following steps are concrete actions every employment-based applicant should take now, whether your case is pending or not yet filed.

• Compile your positive equity evidence now: tax transcripts for all U.S. years, continuous employment documentation, family ties (marriage and birth certificates, children's school records), home ownership records, community involvement, professional contributions, and any humanitarian equities.
• Prepare a detailed explanation of why adjustment in the U.S. is warranted over consular processing: processing times at your home-country consulate, visa interview backlogs, family hardship from departure, employment disruption, and any country-specific processing pauses.
• If you are on H-1B or L-1, document your dual-intent status clearly. While 'not sufficient on its own,' dual intent remains a meaningful positive factor.
• If you are on O-1, TN, or E-3 (non-dual-intent categories), consult your immigration attorney about whether transitioning to H-1B before the I-485 stage strengthens your discretionary case.
• Maintain your underlying nonimmigrant status as a safety net. Retrogression or a denial leaves you reliant on your H-1B, L-1, or O-1 status.
• Limit Advance Parole travel under the current climate — departure and reentry risks are elevated when discretionary standards are tightening.
• If your I-485 is denied, do not assume it is final. The officer must provide a written discretionary analysis. Your attorney can evaluate a motion to reopen or reconsider, a new application, or federal court litigation.

Litigation Outlook

No court has yet issued an injunction specifically targeting PM-602-0199. However, legal challenges are widely anticipated. The law firm WR Immigration (Wolfsdorf Rosenthal) observed that 'litigation is expected to ensue because adjustment of status is specifically included in the Immigration and Nationality Act as an alternate to consular processing.' Boundless noted that 'USCIS cannot change the underlying law through a policy memo. Legal challenges are anticipated, and courts will have the final say.'

Expected litigation theories include: APA notice-and-comment rulemaking challenges (the memo was issued without public comment); retroactive application violating due process; reliance interests of applicants who structured immigration plans around existing rules; inconsistency with Congressional intent and BIA precedent (Matter of Arai); and post-Loper Bright challenges to USCIS's interpretation of 'may' in INA § 245(a). Practitioners should monitor CourtListener and the USCIS Adjudication Pause Tracker (uscis-pause-tracker.com) for new filings.

The interaction with existing adjudication-hold litigation adds complexity. At least ten federal courts have blocked USCIS's earlier adjudication pauses (PM-602-0192 and PM-602-0194) for individual or group plaintiffs. PM-602-0199 layers heightened discretionary scrutiny on top of processing that was already disrupted by those holds. For applicants from the 75 restricted countries, the combined effect is severe: their cases may be unfrozen by a court order only to face a new discretionary hurdle upon adjudication.