The U.S. Citizenship and Immigration Services (USCIS) issued Policy Memorandum PM‑602‑0199 on May 21 2026, reiterating that adjustment of status (AOS) under INA § 245 is a discretionary act of administrative grace, not a statutory right. Even applicants who meet every eligibility requirement may be denied if USCIS determines that discretion should not be exercised.
Policy memorandum overview
- The memo cites Board of Immigration Appeals precedent (Matter of Blas, 1974) that AOS is an “extraordinary” form of relief allowing an applicant to remain in the United States while bypassing consular processing.
- USCIS stresses that the burden of proof lies with the applicant to show why a favorable exercise of discretion is warranted.
Key factors officers will weigh
USCIS officers must consider the totality of the circumstances, including:
- Immigration compliance history – violations of nonimmigrant status conditions or parole terms are significant negative factors.
- Failure to depart – remaining in the U.S. beyond the authorized period instead of pursuing consular processing weighs against the applicant.
- Fraud or misrepresentation – any prior false testimony or fraud with USCIS or another government agency.
- Lawful original admission – whether the initial admission or parole was obtained in accordance with the laws and policies in effect at that time.
- Conduct inconsistent with visa or parole purpose – activities suggesting the applicant always intended to remain permanently, when a foreign‑based immigrant visa was available.
- Positive equities – family ties, moral character, and other favorable factors must be weighed against the negatives; the mere absence of adverse factors is insufficient to demonstrate the “unusual or outstanding equities” needed for approval.
Dual‑intent visa holders
Maintaining lawful status in a dual‑intent nonimmigrant category (e.g., H‑1B, L‑1) does not automatically merit a favorable discretionary decision. Officers may still deny AOS applications from individuals in valid status.
New denial‑notice requirement
When an AOS application is denied on discretionary grounds, the denial notice must contain a written analysis that:
- Identifies the positive and negative factors considered, and
- Explains why the negative factors outweigh the positive ones.
Implications for applicants
- USCIS signals a willingness to apply heightened scrutiny and to deny I‑485 applications even when statutory eligibility is met.
- Applicants with histories of parole, visa overstay, unauthorized employment, or other compliance issues face an elevated risk of denial.
- Future category‑specific guidance may target particular AOS pathways or population groups.
Practical advice: Individuals with pending or planned I‑485 filings should review their immigration history in light of these factors and consider consulting an experienced immigration attorney to evaluate the likelihood of a favorable discretionary outcome.
This information is provided for general informational purposes and does not constitute legal advice.
Source article: www.murthy.com
