USCIS Adjustment of Status Memo PM-602-0199: What It Means for Form I-485 Applicants

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, and they are discussed further below.

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 the Memo Does Not Do

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 anyone 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 the headline language in some early coverage and in a USCIS spokesperson statement — suggesting that temporary visa holders must now leave the country to apply — goes further than the memorandum itself. The memorandum does not bar adjustment of status; it directs officers to grant it more sparingly and to deny it where the discretionary balance does not favor the applicant.

What the Memo Does

A higher bar of discretion

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 can mean a denial of adjustment and a redirection to apply abroad.

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 the coming months. 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 rules may follow. This page will be updated as the position develops.

Does PM-602-0199 Apply to Pending Form 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 new standard. Anyone with a pending application should review the timing and strength of that application with counsel rather than assume it will be unaffected.

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, and the analysis should turn on the ordinary weighing of factors. 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 Gather to File for Adjustment of Status?

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.

USCIS Policy Manual Volume 7 explains that adjustment adjudication includes verifying the underlying basis for the application, ongoing eligibility, visa availability where applicable, admissibility, and whether a favorable exercise of discretion is warranted where discretion applies. The May 2026 memorandum focuses attention on that final element.

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 (H-1B, L-1) 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.

Visas of Dual Intent vs. Visas Which Are Not of Dual Intent

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 decades of 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.

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, 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 itself 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.

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.

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. 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

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.
• 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.
• 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.

Frequently Asked Questions

Does the May 2026 USCIS memo eliminate adjustment of status?

No. PM-602-0199 does not repeal any statute and does not eliminate adjustment of status. Section 245 of the Immigration and Nationality Act still authorizes in-country green card applications. The memo directs USCIS officers to treat adjustment of status as a discretionary, extraordinary form of relief and to scrutinize these applications more closely, but adjustment of status remains a lawful path to permanent residence.

Is the memo a new rule or a restatement of existing law?

It is best understood as a new policy that restates existing law. Adjustment of status has always been a discretionary benefit, and the memorandum does not change that underlying legal standard. What is new is the policy direction: USCIS officers are now told to treat that discretion as a high bar and to favor consular processing. In practical terms, applicants should expect more scrutiny, more requests for evidence, and, in cases with negative discretionary factors, a greater risk of denial than many applicants have faced in recent years.

Does the memo apply to adjustment of status applications that are already pending?

USCIS has not clearly stated how the memo applies to Form I-485 applications that were already pending when it was issued, and this point is disputed among immigration attorneys. An applicant who filed in good-faith reliance on the prior approach may have a fairness argument against being judged retroactively under a new standard. Anyone with a pending application should discuss this with counsel.

Are H-1B and L-1 dual-intent visa holders affected by the memo?

Dual-intent status such as H-1B or L-1 remains helpful, because holding it is not by itself inconsistent with intending to immigrate. However, the memo states that maintaining a dual-intent status is not, on its own, enough to warrant a favorable exercise of discretion. The overall strength of the application still decides the case.

Why might EB-5 investors be in a different position?

EB-5 concurrent filing of Form I-485 was expressly authorized by Congress in INA § 245(n), enacted through the EB-5 Reform and Integrity Act of 2022. That statutory authorization gives EB-5 investors a specific argument that filing in the United States is a route the legislature deliberately created, rather than a disfavored workaround. It does not guarantee approval, and USCIS still reviews admissibility, eligibility, visa availability, and discretion. See our EB-5 concurrent filing page for the full analysis.

Should I cancel a planned adjustment of status filing?

Not necessarily. Adjustment of status remains available, and for some applicants — including immediate relatives of U.S. citizens and EB-5 investors — there are strong reasons to file in the United States. The right decision depends on visa category, immigration history, and the risks of the consular alternative. This is a decision to make with qualified counsel rather than in reaction to headlines.

Should I file for adjustment of status 90 days after entering the U.S.?

The “90-day rule” was a historical rule of thumb that some immigration lawyers used: the idea that filing for adjustment of status within 90 days of entering the United States could suggest the person concealed an intent to immigrate when they entered, while filing after 90 days was treated as safer. It has never been the practice of our firm to treat 90 days as a green light, and it has never been a safe assumption to plan in advance to file for adjustment of status soon after entry — unless the person entered on a dual-intent visa, such as H-1B or L-1, where holding the status and intending to immigrate are not in conflict.

The May 2026 discretion memorandum makes this even clearer. The memorandum directs officers to weigh, as a negative factor, conduct inconsistent with the temporary purpose of a person’s admission. Against that backdrop, filing for adjustment of status immediately after a 90-day mark — particularly on a visa that is not dual-intent — looks extremely risky. The timing of entry and filing is exactly the kind of issue that should be reviewed with counsel on the specific facts, not handled by counting days.

Can I travel while my Form I-485 is pending after PM-602-0199?

Travel while Form I-485 is pending depends on the applicant’s underlying status, Advance Parole, and any unlawful presence or inadmissibility risks. Many applicants need Advance Parole before departing, while H-1B and L-1 holders may have different travel options. Applicants should review travel plans with counsel before leaving the United States. See the section above on travelling while a Form I-485 is pending.

What should an adjustment of status applicant do now?

Prepare the Form I-485 as a thorough legal submission rather than a routine form package, affirmatively documenting positive discretionary factors such as compliant immigration history, family ties, community connections, tax compliance, and good moral character. Maintain lawful nonimmigrant status while the application is pending where possible, understand the risks before departing the United States, and seek advice from qualified immigration counsel on the specific facts of the case.

Find the Guide for Your Situation

• EB-5 investor: EB-5 concurrent filing and PM-602-0199
• Intracompany transferee: L-1 visa guide
• Marriage green card applicant: Marriage adjustment of status
• 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.