Technical Eligibility Is No Longer Enough Alone
Many people applying for a Green Card from within the U.S. (Adjustment of Status / I-485) have long acted under the assumption: “If I meet the requirements, I will get approval.”
The USCIS policy memorandum PM-602-0199, dated May 21, 2026, shakes this assumption.
The memorandum does not introduce a new law; it reaffirms existing law. But the emphasis is important: USCIS explicitly reminds its officers that adjustment of status is not a “right,” but a matter of discretion and administrative grace.
In other words, meeting the requirements is only the first half of the application.
The second half is the answer to the USCIS officer’s question: “Is it truly appropriate to grant this person a Green Card within the U.S., bypassing the consular process?”
This situation raises an uncomfortable but real question: Would the same file result in a different outcome if it went to a different officer?
In this post, we will explore both the answer to this question and how “discretion” is not as “arbitrary” as it seems—it can be managed with a properly prepared file. We will also discuss the end of a negative decision: legal remedies against a discretionary decision.
Eligibility vs. Discretion Are Not the Same
This distinction is the subject most often confused by applicants and lies at the very heart of the new policy.
Eligibility is a checklist
Do you have an approved petition?
Did you enter via legal channels, “inspected and admitted or paroled”?
Do you have any admissibility issues?
These questions are yes/no; you either meet them or you don’t.
Discretion is an entirely different evaluation
Even if you meet all technical requirements, the USCIS officer weighs all positive and negative factors within the “totality of circumstances” and asks: Is this approval in the interest of the United States?
To give a concrete example:
Imagine two applicants with approved family petitions who entered legally. Both are technically eligible. However, one has been paying taxes for years, has a stable job, and has U.S. citizen children; the other has acted against their entry intent, remained out of status for a long time, and worked without authorization.
On the eligibility table, both appear “eligible.” On the discretion table, the outcomes can be completely different. Therefore, after the new policy, a file should be evaluated not only by “do I meet the requirements?” but also by “which way does the scale of discretion tilt?”
Factors That May Be Evaluated Negatively
The new policy directs officers to examine certain past situations more carefully. Immigration violations, in particular, carry more weight during this period.
The following factors are not automatic grounds for denial on their own; however, they create significant extra weight on the discretion scale and must be balanced.
History of unauthorized (illegal) work: Working without work authorization directly affects both technical eligibility (especially in some categories) and the discretionary evaluation. From the officer’s perspective, this can be read as an indicator of a tendency not to comply with status conditions.
Violation of visa conditions: Acting contrary to the purpose of entry—for example, entering on a tourist visa and effectively settling or working—is a point the memorandum specifically highlights. The memorandum places special importance on the consistency between the intent at the time of entry and the subsequent application.
Overstaying the allowed period: Acting contrary to the U.S. expectation to “depart when the time is up” is mentioned directly in the memorandum as a negative factor. This can be evaluated more severely, especially if it is linked to an intent to settle permanently.
Misrepresentation or fraud: This is one of the most serious risk areas in adjustment applications. Past or current misrepresentation in dealings with USCIS or any government agency is both a severe negative factor and can create a separate admissibility issue. When such a matter is attempted to be hidden, the outcome is often even worse.
Having a criminal record: It is not just the result of the court decision; the nature of the event, the date, the risk of repetition, and indicators of rehabilitation are also taken into evaluation. Since some crimes also affect admissibility, they can create a dual-layered risk.
The important point is this: The existence of these factors does not close the door. However, as the memorandum clearly states, such negatives must be balanced with “extraordinary and even superior favorable elements.” And take note: the absence of a negative factor does not, in itself, mean the existence of these superior favorable elements.
Factors That Provide an Advantage
USCIS does not just look at the negative past; it also weighs positive elements on the other side of the scale. In this new policy era, documenting these positive proofs has become more important than ever. The evaluating officer cannot put something they do not see in the file onto the discretion scale.
Regular tax payment: A stable tax history is a concrete indicator that a person has adapted to the system and has acted responsibly. Tax returns are often the strongest and most indisputable positive evidence.
Stable work history: A continuous and legal work history shows both the person’s economic independence and their integration into society.
Activities contributing to the community: Volunteering, memberships in associations, and ties established with the local community (community ties) are favorable elements in the discretionary evaluation.
Long-term legal life in the U.S: Long-term and regular residence is a strong balancing element showing that the person’s roots are here.
U.S. citizen family members: A spouse, child, or dependent family member carries significant weight under the heading of “humane considerations”.
At this point, the concept of an “equity package” comes into play. An equity package is an integrated evidence and argument file that goes beyond the technical forms of the application, revealing why the person deserves a Green Card within the U.S.: tax records, employment history documents, evidence of family ties, proofs of community contribution, and a legal brief that brings all these together.
If there is a negative factor in the file, the equity package is structured not to hide this negativity, but to balance and contextualize it. A correctly prepared equity package is the most effective way to turn the discretion scale in your favor.
What Can Be Done Against a Negative Discretionary Decision? Legal Remedies
Here is where the often-overlooked dimension of the new policy begins. When discretion is used more strictly, denials may also increase. So, does the process end there if a negative decision is given? No—and this is where immigration law intersects with litigation expertise.
First, the good news:
A denial decision must contain a written justification. This is the most overlooked but most valuable part of the memorandum for the applicant. PM-602-0199 states that when an application is denied due to the negative use of discretion, the notice of denial must include an explanation of the positive and negative factors evaluated and why the negatives outweighed the positives.
This is an obligation the administration has placed on itself. What does this mean in practice? If a justification is written, the consistency, the facts it relies upon, and its legal basis can be examined and questioned.
However, one must be realistic. Challenging a USCIS discretionary decision is not a one-size-fits-all process and contains significant legal hurdles:
Important limitation:
Pure discretionary decisions are largely closed to direct judicial review. INA § 242(a)(2)(B) and the Supreme Court’s Patel v. Garland (2022) decision significantly limit direct review of discretionary decisions and associated factual findings in federal court.
It is no coincidence that the memorandum relies on these decisions; the administration is consciously emphasizing the wide area these decisions grant it. Therefore, there is no simple path like “I don’t like it, let me file a lawsuit and challenge the decision.”
Despite this, there are real legal steps that can be evaluated according to the specific case:
Renewing the application within removal proceedings.
In most cases, this is the most practical path. A person whose I-485 application is denied by USCIS and who enters the removal process may have the opportunity to resubmit their application before an immigration judge. Here, the file can be defended again with stronger arguments before an independent judicial body.
Claims of procedural and legal violations (under the APA).
Although federal courts’ interference with the core of discretion is limited, errors related to procedure and law—such as the administration failing to follow its own rules, applying an incorrect legal standard, violating the obligation to provide justification, or acting in an arbitrary and capricious manner—can be subject to litigation. The mandatory written justification required by the memorandum can form the basis for exactly this type of review.
Do Mandamus lawsuits work?
This path is primarily for unreasonable delays—that is, when USCIS does not conclude an application for an unusually long time. Mandamus is used not to change the content of a negative discretionary decision, but to force the administration to make a decision. It is important to know this distinction.
The common point of all these paths is this: Each requires the file to be prepared from the very beginning with both immigration and potential litigation dimensions in mind. The record created in the initial application is the strongest weapon you have during a potential appeal or litigation phase. Evidence that cannot be added later must have been correctly included in the file from the start.
Your File Should Be Considered with Both Immigration and Litigation Dimensions
The new policy does not close the path to a Green Card from within the U.S. However, it makes the process significantly more selective. Success now depends not only on filling out forms correctly, but on building a strong body of evidence and arguments that will tip discretion in your favor.
The main message of this blog post is this: Discretion is not arbitrary; it is manageable.
A USCIS officer evaluates within the framework of certain criteria; a correctly prepared equity package can make the scale tilt in your favor. And even if a negative decision comes out, the process does not end there—the written justification requirement, the opportunity to renew during the removal process, and procedural litigation paths offer options that can be evaluated in experienced hands.
It is precisely at this point that it emerges that the process may require not only immigration law but also litigation expertise when necessary. When a file is structured from the initial application stage with the possibility of a potential appeal or litigation in mind, it is in a much stronger position.
Move Forward Confidently with MC Law Firm
In this new and more selective era, as MC Law Firm:
We structure your file with a strong equity package that complies with USCIS’s new discretionary standards.
We offer strategic guidance for you to manage negative factors in your past immigration history.
In the event of a potential denial, we prepare your file from the start, considering the litigation dimension, including renewal within the removal process and appropriate legal paths.
We continue to defend your process on a strong legal footing not only in immigration law but also with our litigation attorneys when necessary.
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info@mclawfirm.com
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