USCIS Restates Discretionary Standard for Adjustment of Status: What Employers Need to Know

On May 21, 2026, U.S. Citizenship and Immigration Services (USCIS) issued Policy Memorandum PM-602-0199, emphasizing the discretionary nature of Adjustment of Status (AOS) applications under Section 245 of the Immigration and Nationality Act (INA). While early headlines and the memo’s rhetoric have caused significant concern by framing AOS as an “extraordinary form of relief,” the substantive immigration laws and eligibility regulations have not changed.

This is not a nationwide freeze on AOS processing – applications, even those with disclosed minor violations or past arrests, continue to be reviewed and approved.

Background

AOS is the process through which an eligible foreign national who is physically present in the United States can obtain U.S. lawful permanent resident (LPR) status or a “green card”. There is also a route to LPR status known as “consular processing” through which eligible individuals apply for an immigrant visa through an overseas U.S. consular post. AOS is typically the last step in an employment-based permanent resident case through which the applicant submits a personal application to request the adjustment of his or her status to LPR. It is the most common pathway to LPR status for individuals who are already living in the U.S.

While a USCIS officer’s exercise of discretionary judgement has always been an element of AOS adjudication, the May 21 memorandum serves as a directive to adjudicating officers to look more closely at both positive and negative discretionary factors under a “totality of the circumstances” framework in determining whether the case is eligible for AOS processing. Of note, the absence of negative factors alone is not sufficient to warrant AOS processing.

The immigration bar is actively preparing federal lawsuits to challenge this memorandum, viewing it as an *ultra vires* (acting beyond legal authority) agency action under the Administrative Procedure Act.

Key Takeaways from the Guidance

Reviewing officers are directed to evaluate the totality of an applicant’s history in determining whether AOS is appropriate.

Positive factors include:

• strong family ties and caretaking duties in the U.S.
• history of good moral character and community standing
• consistent employment history and economic/tax contributions
• long-term U.S. residence, property ownership, or business ties

Negative factors include:

• past or current fraud, misrepresentation, or false testimony
• status violations or unauthorized employment
• conduct inconsistent with the purpose of temporary nonimmigrant status
• failure to comply with admission or parole conditions

What This Means for Employers

• Permitted Filings Continue: This directive does not prevent the filing or approval of AOS applications. For the vast majority of sponsored workers, moving forward with an AOS application remains the most practical path forward.
• Impact on Dual Intent Classifications (H-1B, L-1): The memorandum explicitly acknowledges that filing for AOS is completely consistent with maintaining dual-intent statuses. However, it notes that holding a dual-intent visa does not automatically shield an applicant from a discretionary review.
• Impact on Non-dual Intent Classifications (E, F-1, J-1, O-1, TN). Applicants in a non-dual intent visa category may face higher scrutiny regarding their original immigrant intent and subsequent conduct.

Planning Ahead for Employers

• Maintain compliance documentation of authorized employment and lawful status
• Strengthen discretionary evidence for applicants, including highlighting proof of any positive factors and preparing evidence to address any negative factors
• Work with your immigration attorney to determine whether to file an AOS or pursue consular processing
• Review any employees with pending or anticipated green card applications to determine and prepare for any challenges

Gibney is closely monitoring adjudicator behavior and the development of forthcoming federal litigation. For questions regarding how this policy impacts your specific workforce or pending cases, please reach out to your Gibney attorney or email info@gibney.com.

Amy McCoy