USCIS Adjustment of Status Discretion Memo (PM-602-0199)

Adjustment of Status vs. Consular Processing

There are two routes to a U.S. green card once an immigrant petition or category makes a visa available. Adjustment of status is the route for people already inside the United States: they file Form I-485 with USCIS and, if approved, become permanent residents without leaving the country. Consular processing is the route for people abroad, or for people who choose to apply abroad, through an immigrant visa process at a U.S. consulate.

In recent years, adjustment of status has been a common route for many applicants already present in the United States. The May 2026 memorandum states a policy preference for the ordinary immigrant visa process through consular processing. It is worth understanding why each route matters in practice: consular processing requires international travel and, for some applicants, can raise separate issues such as the unlawful presence bars. These are exactly the risks that make the choice of route consequential.

It is also important not to assume that consular processing is automatically the safer route. For applicants with unlawful presence, prior status violations, inadmissibility concerns, or complex family circumstances, leaving the United States can create separate legal and practical risks. The choice between adjustment of status and consular processing should be reviewed with counsel before any departure.

What PM-602-0199 Does Not Change

A USCIS policy memorandum cannot rewrite the statute. PM-602-0199 does not repeal any law, it does not eliminate adjustment of status, and it does not prohibit every applicant from filing Form I-485 from within the United States. INA § 245 / 8 U.S.C. § 1255 still authorizes adjustment of status for applicants who meet the statutory requirements, and the implementing regulations appear in 8 CFR Part 245. The eligibility requirements for each green card category are unchanged. The memorandum operates at the stage of discretion — the final judgment an officer makes once eligibility is established — not at the stage of basic eligibility.

It is also worth noting that headline language in early coverage and in the USCIS newsroom release goes further than some of the legal mechanics inside the memorandum itself. The memorandum does not repeal adjustment of status; it directs officers to grant it more sparingly and to deny it where the discretionary balance does not favor the applicant. As the June 2026 clarification above reflects, USCIS itself has since walked the “only in extraordinary circumstances” framing back toward a case-by-case description.

What PM-602-0199 Changes in Practice

A higher discretionary bar

The memorandum instructs officers to treat adjustment of status as an extraordinary, discretionary benefit and to apply heightened scrutiny. Officers are told to weigh, as a negative factor, conduct inconsistent with the temporary purpose of a person’s admission. Satisfying the eligibility requirements may no longer be the end of the analysis where discretionary concerns are present. Where an applicant’s record carries negative factors, officers are directed to look for genuinely strong positive factors — “unusual or even outstanding equities” — to offset them. For some applicants, that may mean denial of adjustment and practical pressure to pursue immigrant visa processing abroad, if they can do so without triggering separate inadmissibility or return risks.

What is still unsettled

Several points about the memorandum remain unsettled. Detailed implementing guidance has not yet been published, so how heavily the policy will be applied will become clearer over time. The June 2026 spokesperson statements point toward case-by-case implementation, but they are not binding guidance. The memorandum also states that USCIS may issue further guidance specific to certain adjustment of status categories or particular groups of applicants, so category-specific instructions may follow. This page will be updated as the position develops.

Does PM-602-0199 Apply to Pending I-485 Applications?

How the memorandum applies to Form I-485 applications that were already pending when it was issued is one of the most pressing questions, and it is disputed among immigration attorneys. USCIS has not clearly stated how already-filed applications will be treated. An applicant who filed in good-faith reliance on the prior approach may have a fairness argument against being judged retroactively under a more restrictive policy lens. Anyone with a pending application should review the timing and strength of that application with counsel rather than assume it will be unaffected.

What Happens Next?

PM-602-0199 is a memorandum, not a regulation, so the picture is likely to keep moving. Several developments are worth watching, and any of them could change how the policy is applied:

• Category-specific USCIS guidance. The memorandum says USCIS may issue further guidance for particular adjustment of status categories or groups of applicants. If that guidance arrives, it could clarify — or narrow — how officers treat specific categories such as F-1, O-1, or parolees.
• Policy Manual updates. A memorandum often precedes a formal update to the USCIS Policy Manual. A Policy Manual change would give officers more detailed, binding instructions than a press statement and would supersede parts of this analysis.
• Litigation. Immigration attorneys widely expect legal challenges if the memorandum is used to deny adjustment to otherwise-qualified applicants. Possible grounds include the limits of USCIS’s statutory authority, congressional intent behind INA § 245, Administrative Procedure Act procedural requirements, and the fairness of applying a more restrictive lens retroactively to pending cases. A court could stay, narrow, or uphold the policy.
• Implementation in practice. The clearest signal will come from how adjudications and interviews actually unfold over the coming months, including request-for-evidence and denial patterns by category.

Adjustment of Status Risk Matrix After PM-602-0199

The memorandum applies broadly, but not every applicant is affected in the same way. The following matrix summarizes the practical risk posture by common applicant category. It is a framework, not a substitute for legal advice. The June 2026 clarification does not change the order below, though it is more reassuring for status-compliant, employment-based applicants in particular.

Decision Framework: Should I Adjust Status or Consular Process?

After PM-602-0199, the adjustment-versus-consular decision should not be made from headlines. It should be made by walking through a structured risk analysis.

1. Are you statutorily eligible for adjustment? Confirm lawful admission or parole, immigrant visa availability where required, admissibility, and category-specific requirements.
2. What was your status at entry? A dual-intent admission such as H-1B or L-1 presents different issues from a visitor, student, TN, or other non-dual-intent admission.
3. How soon after entry are you filing? A filing shortly after entry can raise questions about whether the temporary purpose of admission was genuine.
4. Are there negative factors? Review overstays, unauthorized employment, prior denials, arrests, misrepresentation issues, public charge concerns, and immigration history gaps.
5. Are there strong positive factors? Identify family unity, long lawful residence, tax compliance, lawful employment, community ties, humanitarian concerns, and category-specific statutory arguments.
6. Would consular processing create its own risks? Departure may trigger unlawful presence bars, separate inadmissibility issues, family separation, employment disruption, or practical inability to return.
7. Can the I-485 be strengthened before filing? In many cases the answer is not simply file or do not file, but whether to supplement the application with a legal brief and discretionary evidence package.

The Discretionary Factors USCIS Weighs

The memorandum directs officers to weigh positive and negative factors in the totality of the circumstances. Applicants who are otherwise eligible should expect to have to affirmatively document the positive factors in their case, rather than assuming eligibility alone will carry the application.

One point deserves emphasis. Existing USCIS policy guidance has long stated that where there are no negative factors to weigh against an applicant, denial of the benefit would generally be an inappropriate use of discretion. There is therefore a reasonable argument that an applicant with a genuinely clean record — no immigration violations, no unauthorized employment, no adverse history — has little or nothing for officers to weigh against them. How USCIS officers apply the new memorandum to clean-record cases in practice remains to be seen, and a strong application should document the favorable factors fully in any event.

What Evidence Should I Include With Form I-485 After PM-602-0199?

Under the May 2026 memorandum, an adjustment of status application should be built as a documented legal submission, not a routine form package. A complete Form I-485 has always required certain core items, and those are still needed. What has changed is the importance of going beyond the minimum to affirmatively evidence the positive discretionary factors in the case. Our Form I-485 Guide explains the adjustment application and its standard requirements in detail.

Build a discretionary evidence packet, not just an I-485 packet

A post-PM-602-0199 filing should contain two layers. The first is the ordinary eligibility packet: forms, identity documents, medical exam, immigrant petition evidence, I-94, status documents, and civil records. The second is the discretionary packet: evidence showing why USCIS should choose to exercise favorable discretion even though adjustment is not automatic.

That second layer is where many generic filings may now be weak. A strong discretionary packet may include a short legal cover letter, an immigration-status chronology, proof of timely filings and extensions, tax records, W-2s or pay records where relevant, evidence of lawful work authorization, family-equity evidence, community service records, medical or humanitarian evidence, and a direct explanation of any negative factor.

Core evidence: the baseline an I-485 has always needed

• The approved or pending immigrant petition, or proof of the immigrant category the application is based on.
• Proof of lawful entry and inspection, such as the passport, visa, and I-94 admission record.
• The required medical examination and vaccination record.
• Identity and civil documents, including birth certificate, passport biographic pages, and, where relevant, marriage and divorce certificates.
• Evidence of the applicant’s nonimmigrant status history and continued maintenance of status.

Discretionary evidence: positive factors to document affirmatively

This is where the memorandum changes practice. Where the core filing answers whether the applicant is eligible, this evidence helps answer whether discretion should be exercised in their favor. Depending on the case, it can include:

• Compliant immigration history. Records showing consistent maintenance of status, timely extensions, and no unauthorized employment or overstays.
• Family ties. Evidence of a U.S. citizen or permanent resident spouse, children, or other close family in the United States.
• Length of residence and community connections. Evidence of time lawfully spent in the U.S., property or a lease, and ties such as religious, civic, or volunteer involvement.
• Tax and financial compliance. Tax filings and records showing lawful employment and that the applicant is not a public charge concern.
• Good moral character. Reference letters, employment performance reviews, awards, certificates, and evidence of community or charitable service.
• Humanitarian considerations. Documentation of any serious medical conditions or hardship factors relevant to the applicant or their family.
• Category-specific evidence. EB-5 investors should be ready to point to the statutory authorization for concurrent filing; dual-intent visa holders should document genuine maintenance of status; family-based applicants should document the qualifying relationship and the equities.

Addressing negative factors directly

If the record contains anything an officer could treat as a negative factor — a past overstay, a gap in status, an arrest, a prior misrepresentation — it is generally better to address it in the filing with an explanation and supporting evidence than to leave it unexplained. Where negative factors are present, the memorandum directs officers to look for genuinely strong positive factors to offset them, so the positive evidence above becomes more important, not less. Anyone with negative factors in their history should review the application with counsel before filing.

Dual Intent vs. Non-Dual Intent Visas

One distinction runs through almost every question about this memorandum: whether the applicant holds a visa of dual intent or a visa that is not of dual intent. Understanding it is essential to understanding how the memorandum affects a given case.

What dual intent means

Most nonimmigrant temporary visas carry a presumption that the holder intends to leave the United States when their status ends. A holder of such a visa is generally expected not to have a present intention to immigrate. Dual intent is the exception: it means a person may lawfully hold a temporary nonimmigrant status and, at the same time, intend to become a permanent resident, without the one undermining the other. For a dual-intent visa holder, the act of pursuing a green card does not conflict with the terms of their admission.

Visas of dual intent

The principal dual-intent categories are H-1B and L-1 together with their dependent categories, H-4 and L-2. Dual intent for these categories is a long-established concept with support in federal law and regulation. A holder of one of these visas can pursue adjustment of status without the filing itself being treated as inconsistent with their nonimmigrant status, and can generally extend that status while the Form I-485 is pending. The June 2026 clarification reinforces that these status-compliant, employment-based applicants are comparatively well positioned. For intracompany transferees, see our L-1 visa guide.

Visas which are not of dual intent

Most other temporary categories — including F-1 students, B-1/B-2 visitors, J-1 exchange visitors, and TN professionals — are not dual-intent visas. They require nonimmigrant intent. A holder of one of these visas is not barred from later developing an intention to immigrate, but they must not have concealed an immigrant intent at the time they sought the visa or entered the United States, and conduct soon after entry that suggests otherwise can create a misrepresentation problem.

The O-1 category sits in an awkward middle position. It is not explicitly designated as a dual-intent visa by statute. It has not historically caused problems at the adjustment of status stage in the same way as some single-intent categories, but it does not carry the clear statutory protection that H-1B and L-1 enjoy, and how the memorandum will be applied to O-1 cases is not yet clear. O-1 holders should take advice before filing.

Why the distinction matters under the memorandum

The May 2026 memorandum directs officers to weigh, as a negative factor, conduct inconsistent with the temporary purpose of a person’s admission. For a non-dual-intent visa holder, pursuing adjustment of status can sit in tension with the temporary purpose of their visa, so the memorandum’s logic bears on them more directly. For a dual-intent visa holder, that tension does not arise in the same way, because dual intent is precisely what their visa permits.

It is important not to overstate the dual-intent advantage. The memorandum is explicit that maintaining a dual-intent status is not, on its own, sufficient to warrant a favorable exercise of discretion. Dual-intent status removes one significant negative factor; it does not, by itself, win the case. The overall strength of the application still decides the outcome. But the starting position is meaningfully better for an H-1B or L-1 holder than for someone in a non-dual-intent category.

One practical consequence follows from this. A person currently in a non-dual-intent status, such as TN, who is working toward a green card may wish to consider whether moving to a dual-intent status such as H-1B before reaching the adjustment of status stage would strengthen their position. Whether that is possible or advisable depends entirely on the individual’s facts and should be discussed with counsel.

Who Is Affected, by Visa Category

The memorandum applies to adjustment of status generally, but its practical impact varies by situation.

F-1 students and recent graduates

F-1 is not a dual-intent category, and students and recent graduates — including those on OPT or STEM OPT — are likely to feel real anxiety about this memorandum. F-1 status requires nonimmigrant intent, so the timing of an adjustment filing relative to entry and to graduation matters. Students should be especially wary of simplistic “90-day rule” assumptions, discussed below, and should plan an adjustment strategy with counsel rather than by counting days.

A growing number of F-1 and M-1 students are in the United States while pursuing EB-5 investment, either as the investor or as the child of an EB-5 investor. EB-5 sits in a distinct position here: concurrent filing of Form I-485 is expressly authorized by Congress in INA § 245(n), enacted through the EB-5 Reform and Integrity Act of 2022. That statutory authorization does not extend to a student adjusting status through an employment-based or family-based route, who relies on the general provisions of INA § 245. A student pursuing a green card through EB-5 is therefore in a different position from a student adjusting on another basis.

B-1/B-2 visitors

Visitors are among the most exposed under the memorandum’s logic, because seeking permanent residence sits in obvious tension with the temporary purpose of a visitor admission. Filing for adjustment soon after entering on a B-1/B-2 visa can raise questions of preconceived intent or misrepresentation. Visitors considering adjustment of status should obtain advice before filing.

Dual-intent visa holders: H-1B and L-1

Holders of dual-intent nonimmigrant statuses, principally H-1B and L-1, are in a comparatively stronger position. Dual intent means it is lawful for them to hold the nonimmigrant status and intend to immigrate at the same time, so the act of pursuing a green card does not, by itself, conflict with the terms of their admission. The memorandum is explicit, however, that maintaining a dual-intent status is not, on its own, sufficient to earn a favorable exercise of discretion. The overall strength of the application still decides the case. For intracompany transferees, see our L-1 visa guide.

O-1 and TN applicants

O-1 and TN sit between the clear dual-intent categories and the single-intent categories. O-1 has historically been treated more flexibly than many single-intent categories at the adjustment stage, but it does not have the same clean statutory dual-intent footing as H-1B and L-1. TN is a single-intent category. An applicant in O-1 or TN status working toward a green card should take advice before filing, and a TN holder in particular may wish to consider whether moving to a dual-intent status before the adjustment stage would strengthen their position.

Employment-based applicants: EB-1, EB-2, NIW, EB-3

Employment-based applicants pursuing adjustment through EB-1, EB-2, the EB-2 National Interest Waiver, or EB-3 are subject to the same discretionary review. The earlier stages of the employment-based process — the PERM labor certification and the Form I-140 immigrant petition — are not adjustment of status applications and do not themselves raise the discretionary concerns the memorandum addresses; they establish eligibility and a priority date. The discretionary question arises at the Form I-485 stage. Multinational managers and executives pursuing this route can read more on our EB-1C green card page.

K-1 fiancé(e) visa holders

The K-1 fiancé(e) visa is different from most nonimmigrant categories: adjustment of status after marriage to the petitioning U.S. citizen is part of the statutory process the K-1 sets up, so the memorandum’s central concern does not bear on a properly used K-1 as it does on a visitor or student. For more detail, see Why K-1 Fiancé(e) Visa Holders May Be in a Different Position below.

Marriage-based and family-based applicants

Family-based and marriage-based adjustment continues to be available. Immediate relatives of U.S. citizens — spouses, parents, and unmarried minor children — often receive more forgiving treatment for certain status violations, but this does not cure every inadmissibility issue and does not eliminate discretionary review. Family-based and marriage-based applicants should still expect heightened scrutiny and should document the qualifying relationship and the positive factors in their case. See our Marriage Adjustment of Status page.

Applicants with overstays or other negative factors

Applicants who have accrued unlawful presence, or who have other negative factors in their history, face the most difficult analysis. For some, departing the United States to consular process can itself trigger a multi-year bar on returning, which makes the choice of route especially consequential. The June 2026 clarification specifically flagged overstays, prior unlawful presence, parole status, criminal issues, and certain nationalities as areas of continuing scrutiny, so this group should treat the softer public messaging with particular caution. Anyone in this situation should obtain advice before filing and before departing the country.

Should I Travel While My Form I-485 Is Pending?

Travel is a common concern for adjustment applicants, and the memorandum sharpens it. As a general rule, an applicant with a pending Form I-485 who is not in H-1B or L-1 status needs an approved Advance Parole document before departing the United States; leaving without it can cause the adjustment application to be treated as abandoned. H-1B and L-1 holders are generally able to travel on their underlying nonimmigrant status while the I-485 is pending, which is a further practical advantage of those categories.

Beyond abandonment, departure can create separate problems. An applicant who has accrued unlawful presence may trigger a multi-year bar on returning by leaving the country. And if an adjustment application is denied while the applicant is abroad, returning can become difficult or impossible. Anyone with a pending I-485 should confirm their travel position — Advance Parole, underlying status, and any unlawful presence exposure — with counsel before booking travel.

Review my adjustment of status and travel options with a U.S. immigration lawyer.

Why EB-5 Investors May Be in a Different Position

Why K-1 Fiancé(e) Visa Holders May Be in a Different Position

Guidance for Employers, HR Teams, and Attorneys

PM-602-0199 is not only an individual concern. Employers sponsoring foreign talent, in-house mobility and HR teams, and outside counsel all have a role in reducing adjustment of status risk before it reaches an officer’s desk.

• Audit the workforce by category and status history. Identify who is adjusting (or plans to) and whether they hold dual-intent status such as H-1B or L-1, or a single-intent status such as TN, O-1, F-1, or B-1/B-2. Status maintenance and clean records are now central, not background detail.
• Build the discretionary record into every filing. Treat each Form I-485 as a documented submission, with maintenance-of-status evidence, tax and payroll records, and the employee’s positive equities, rather than a checklist package.
• Prepare employees for tougher interviews. Some applicants are already reporting more pointed questioning. Brief sponsored employees on their immigration history and the purpose of their admission.
• Consider category strategy early. For employees in non-dual-intent status, evaluate whether moving to a dual-intent category before the adjustment stage is realistic, and weigh adjustment against consular processing on the facts.
• Re-review pending cases. Where a Form I-485 was filed as a bare package, assess whether a discretionary supplement or legal explanation should be added.

Practical Steps for Applicants

• Prepare the I-485 as a legal submission. Treat the adjustment application as a documented legal filing, not a routine form package, and affirmatively present the favorable discretionary factors in the case.
• Document a clean record. Gather evidence of lawful status, work authorization compliance, tax compliance, and the absence of immigration violations. Consider adding supporting evidence such as community involvement, awards, or positive employment history.
• Maintain nonimmigrant status while the application is pending. Where possible, continue to hold — and if needed extend — a valid nonimmigrant status, so that a denial of adjustment does not immediately end lawful presence.
• Do not over-rely on the June 2026 clarification. The case-by-case messaging is encouraging for status-compliant applicants, but it is not binding guidance and can change. Build the discretionary record as though officers are applying the memorandum in full.
• Understand the risks before departing the U.S. If adjustment is denied and consular processing becomes necessary, departure can trigger separate consequences, including unlawful presence bars for some applicants. Understand the outcome before leaving.
• Consider category-specific factors. EB-5 investors should be ready to point to INA § 245(n); dual-intent visa holders should document genuine maintenance of status; family-based applicants should document the qualifying relationship and equities.
• Consider supplementing weak pending filings. If a pending Form I-485 was filed as a bare form package, review whether a discretionary evidence supplement or legal explanation should be added.
• Get advice on your specific facts. This is a developing policy. The right course of action depends heavily on visa category, immigration history, and the timing of entry and filing. Speak with qualified immigration counsel.

How This Analysis Was Prepared

This guide was prepared from the text of USCIS Policy Memorandum PM-602-0199, USCIS public guidance on Form I-485 and adjustment of status, the subsequent USCIS and DHS public statements reported in late May and early June 2026, INA § 245, 8 CFR Part 245, and current USCIS Policy Manual materials. It separates what the memorandum expressly says from what existing law already required, what subsequent agency statements have clarified, and what practical risks remain while implementation is unsettled. The page is attorney-reviewed and will be updated as USCIS publishes implementing guidance or category-specific instructions; any strategy discussion should be treated as a framework for legal review, not a prediction of how every officer will adjudicate every case.

Frequently Asked Questions

Find the Guide for Your Situation

• EB-5 investor: EB-5 concurrent filing and PM-602-0199
• F-1 or M-1 student pursuing EB-5: EB-5-based adjustment of status for students (PDF)
• Intracompany transferee: L-1 visa guide
• Marriage green card applicant: Marriage adjustment of status
• K-1 fiancé(e) of a U.S. citizen: K-1 fiancé(e) visa guide
• Multinational manager or executive: EB-1C green card
• The adjustment application itself: Form I-485 guide
• EB-5 program overview: EB-5 visa guide

This page is provided for general informational purposes only and is not legal advice. It does not create an attorney-client relationship. PM-602-0199 is a recent and developing policy; the law and USCIS guidance in this area may change, and the right course of action depends on the specific facts of your case. Please consult qualified immigration counsel before taking any action based on this page.