For many people living in the United States on temporary status or those dreaming of doing so, the “Adjustment of Status” (AOS) process-the path to obtaining a Green Card without leaving the U.S.-is one of the most critical routes to permanent residency.
However, on May 21, 2026, USCIS released Policy Memorandum PM-602-0199. This memo provides specific guidance to USCIS officers on how to exercise their “discretion” (their power to make judgments) when reviewing 1-485 applications. This policy makes the USCIS evaluation process stricter and more transparent.
This change has caused concern among those who have already applied or are planning to apply for AOS. What is the goal of this change, and which applicants are at risk?
The Core Message: “Discretion”
The new policy emphasizes that receiving a Green Card through AOS is not just about meeting technical requirements; it also involves a “discretionary relief” assessment.
The guidance to USCIS officers sends a clear message:
Do not review files solely based on technical eligibility.
More aggressively weigh the applicant’s overall immigration history and the positive/negative factors presented in the file.
This is not a change in the law. However, USCIS is now asking the question, “Why should we grant this person a Green Card within the United States?” more seriously than ever before.
Who Will Be Affected?
The Critical Distinction: INA § 245 vs. INA § 209
To understand this policy, you must know which law governs your application, as not all 1-485 applications are based on the same legal foundation.
1. INA § 245 (General Adjustment of Status)
This is the general path for family-based and employment-based applications.
In this system, USCIS asks: “Are the requirements met?” and “Is it appropriate to grant a Green Card to this person?” The new policy makes this discretionary evaluation much more visible and rigorous.
2. INA § 209 (Refugees and Asylees)
This is a special category for people who have already been granted protection by the U.S. Because these individuals have already been vetted and recognized as needing protection, their path is different from INA § 245. While they are not automatically approved-and still face checks for security, criminal records, and fraud-they do not face the same “why should you stay here” scrutiny as general applicants.
Who Is Most at Risk?
Those applying under INA § 245 are the most affected. Preparation is now critical for:
Status Complexities: People who entered on non-immigrant visas (F-1, B-1/B-2, TN, etc.) and later shifted to a Green Card path.
Past Violations: Those with history of overstaying, unauthorized work, or behavior inconsistent with their original visa intent.
Mixed Immigration History: Individuals with past claims of misrepresentation, criminal records, or prior deportation proceedings.
Analysis of Application Types
Risk assessment for Adjustment of Status applications is not determined solely by the application category. The applicant's manner of entry into the U.S., status history, employment history, previous statements, criminal records, and the overall integrity of the application are evaluated collectively. The following table summarizes key assessment points that may arise for various application types in light of the new policy approach.
| Application Type or Situation | General Risk Level | Assessment Note |
|---|---|---|
| Family-based I-485 applications | Moderate–High | Family ties can be a strong positive factor for the applicant. However, these ties do not automatically erase past status violations, unauthorized work, or the risk of misrepresentation. Both the nature of the family relationship and the applicant's immigration history must be evaluated together in the file. |
| U.S. citizen spouse or immediate relative categories | Moderate | Immediate relative categories may be more advantageous regarding certain technical violations. However, this category does not imply automatic approval. If fraud, a criminal record, serious status violations, or inconsistent statements exist, the application may be more subject to the officer's discretionary evaluation. |
| Employment-based I-485 applications, especially those with H-1B or L-1 history | Moderate–High | Dual intent statuses such as H-1B and L-1 may provide certain advantages during the adjustment process. However, a job offer or approved immigrant petition is not sufficient on its own. Status continuity, legal employment history, the employer relationship, 245(k) scope, and potential status violations must be carefully scrutinized. |
| Adjustment of Status from F-1, B-1/B-2, or TN status | High | One of the most critical issues in these files is the consistency between the intent at the time of entry into the U.S. and the subsequent adjustment application. Especially in applications filed shortly after entry, the timing, prior statements, and the applicant's conduct may be scrutinized more closely. |
| Adjustment of Status via Diversity Visa | Moderate–High | Timing is critical in Diversity Visa files. However, merely adhering to timeframes may not be sufficient. The applicant's status history, admissibility status, and eligibility for adjustment must be presented clearly and consistently. |
| Applicants who entered the U.S. via Parole | Variable | Parole is not, in itself, a factor that determines a positive or negative outcome. The type, purpose, and duration of the parole, the program under which it was granted, and which adjustment category it is combined with are important. Therefore, files with a parole history must be analyzed separately according to their category. |
| Applicants with TPS | Variable | Holding TPS does not, by itself, provide sufficient assurance in the adjustment process. The applicant's initial manner of entry, use of travel authorization, admission or parole status, and the legal approach in the relevant jurisdiction may affect the outcome of the file. |
| Asylee or refugee adjustment applications | Distinct | Asylee and refugee adjustment applications are evaluated within a different legal framework than standard INA 245 applications. The reliance on protected status is a significant difference; however, issues such as security, criminal records, fraud, inadmissibility exceptions, and firm resettlement may still be examined. |
| VAWA, SIJ, T, or U-based applications | Special | These categories are based on regulations intended for special protection and should not be evaluated in the same manner as general family or employment-based adjustment applications. Since each category has its own unique inadmissibility, waiver, and discretion rules, the evaluation must be conducted within the framework of the relevant specific regulation. |
| Applicants with a criminal record | High | A criminal record can have serious consequences both in terms of legal eligibility and discretionary evaluation. Not only the result of the court ruling but also the nature of the incident, the date, risk of recidivism, indicators of rehabilitation, and the applicant's overall file profile must be evaluated together. |
| Files involving allegations of misrepresentation or fraud | Very High | Allegations of misrepresentation or fraud are among the most serious risk areas in adjustment applications. If such an issue exists, the file strategy must be established accordingly from the very beginning. Concealing or downplaying the issue may lead to more severe immigration consequences beyond the denial of the application. |
Strategy for the New Era
The memorandum does not end the 1-485 process; you can still apply from within the U.S. However, officers now require a clear justification for why an applicant should be allowed to adjust status internally.
Recommendations for a Successful Application:
1. Avoid “Minimalist” Filings: Simply filling out forms is no longer enough.
2. Build a Strong “Equity Package”: Include a legal brief that proves your contributions to America, your community ties, family responsibilities, tax history, and a compelling reason for why you should stay.
3. Proactively Manage Negative Factors: If you have a status violation, address it openly with legal explanations or waivers rather than trying to hide it.
4. Get Professional Support: In this era of strict discretion, working with an immigration attorney to structure your file to “encourage” a positive discretionary decision is vital.
Conclusion: The path to Adjustment of Status remains open, but the process has become more selective. Each case must be prepared with extreme diligence.
Move Forward with Confidence with MC Law Firm
In this new and more selective era, managing your immigration process with a professional perspective is of great importance. As MC Law Firm, we provide the following:
We structure your file in accordance with the new USCIS discretionary authority standards.
We offer the strategic guidance necessary to manage risks within your past immigration history.
We keep you informed at every stage of your application.
Beyond just immigration law, we continue to defend your process on a strong legal basis when necessary, with our litigation attorneys.
Contact Information:
Phone: 201-957-0909
Email: info@mclawfirm.com
Instagram: @allthingsimmigration
