The USCIS Director’s Office just released a Policy Memorandum, Adjustment of Status is a Matter of Discretion and Administrative Grace, and an Extraordinary Relief that Permits Applicants to Dispense with the Ordinary Consular Visa Process (PM-602-0199) (May 21, 2026).

On the one hand, USCIS spokesman Zach Kahler is gaslighting the public by asserting that “[f]rom now on, an alien who is in the U.S. temporarily and wants a Green Card must return to their home country to apply, except in extraordinary circumstances.”^[1] On the other hand, the Memorandum is gaslighting the public by claiming it is not altering the status quo but merely “remind[ing] officers” of the agency’s “longstanding approach” to adjudicating cases.

1. What Is Adjustment of Status?

Before 1952, the procedure for a noncitizen to apply for lawful permanent resident status (i.e., a green card) was to seek an immigrant visa at a U.S. embassy or consulate abroad. For noncitizens already in the United States, leaving the country to apply for an immigrant visa—a process which can take several years—could be a hardship to them and their U.S. family members. So, in 1952, Congress enacted section 245 of the Immigration and Nationality Act, allowing for a noncitizen who has legally entered the United States to adjust status within the United States.^[2]

Key prerequisites to adjustment of status are that

1. the noncitizen is eligible to receive an immigrant visa, meaning that USCIS has already decided they fit within a category specified by Congress (for example, the spouse or minor child of a U.S. citizen);
2. an immigrant visa is immediately available, meaning that they are at the top of their category’s waiting list to immigrate as described by the State Department’s Visa Bulletin; and
3. the noncitizen is not “inadmissible,” meaning they have not violated certain immigration or criminal laws, do not have certain communicable diseases, etc.

Here is the current statutory language describing eligibility to adjust status:

The status of an alien who was inspected and admitted or paroled into the United States … may be adjusted … to that of an alien lawfully admitted for permanent residence….^[3]

By using the word “may,” Congress gave USCIS discretion to approve or deny adjustment applications.

2. In General, How Does USCIS Exercise Discretion to Approve or Deny an Adjustment Application?

An applicant for adjustment of status bears the burden of submitting evidence that proves they are eligible to receive the immigration benefit sought.

As mentioned above, since adjustment of status is “discretionary,” even if an applicant meets all the other requirements, USCIS may deny the application based upon a determination that discretion should not be favorably exercised.^[4]

The USCIS Policy Manual tells officers that to make a decision, they must weigh all relevant positive and negative factors including, but not limited to^[5]:

Issue	Positive Factors	Negative Factors
Eligibility Requirements	Meeting the eligibility requirements for adjustment of status.	Not meeting the eligibility requirements may still be considered as part of a discretionary analysis.
Family and Community Ties	Family ties to the United States and the closeness of the underlying relationships. Hardship to the applicant or close relatives if the adjustment application is denied. Length of lawful residence in the United States, status held and conduct during that residence, particularly if the applicant began his or her residency at a young age.	Absence of close family, community, and residence ties.
Immigration Status and History	Compliance with immigration laws and the conditions of any immigration status held. Approved humanitarian-based immigrant or nonimmigrant petition, waiver of inadmissibility, or other form of relief and the underlying humanitarian, hardship, or other factors that resulted in the approval.	Violations of immigration laws and the conditions of any immigration status held. Current or previous instances of fraud or false testimony in dealings with USCIS or any government agency. Unexecuted exclusion, deportation, or removal orders.
Business, Employment, and Skills	Property, investment, or business ties in the United States. Employment history, including type, length, and stability of the employment. Education, specialized skills, and training obtained from an educational institution in the United States relevant to current or prospective employment and earning potential in the United States.	History of unemployment or underemployment. Unauthorized employment in the United States. Employment or income from illegal activity or sources, including, but not limited to, income gained illegally from drug sales, illegal gambling, prostitution, or alien smuggling.
Community Standing and Moral Character	Respect for law and order, and good moral character (in the United States and abroad) demonstrated by a lack of a criminal record and evidence of good standing in the community. Honorable service in the U.S. armed forces or other evidence of value and service to the community. Compliance with tax laws. Current or past cooperation with law enforcement authorities. Demonstration of reformed or rehabilitated criminal conduct, where applicable. Community service beyond any imposed by the courts.	Moral depravity or criminal tendencies (in the United States and abroad) reflected by a single serious crime or an active or long criminal record, including the nature, seriousness, and recent occurrence of criminal violations. Lack of reformation of character or rehabilitation. Public safety or national security concerns. Failure to meet tax obligations. Failure to pay child support. Failure to comply with any applicable civil court orders.
Other	Absence of significant undesirable or negative factors and other indicators of good moral character in the United States and abroad.	Other indicators adversely reflecting the applicant’s character and undesirability as an LPR of this country.

3. How Does USCIS Exercise Discretion in Adjustment Cases Where the Applicant Was Initially Admitted Temporarily as a Nonimmigrant?

Many applicants for adjustment of status have been admitted to the country as nonimmigrants. A nonimmigrant is a foreign national who is allowed to come to the United States temporarily and only for a particular limited purpose. Examples of nonimmigrant statuses include:

• B-1 visitor for business or B-2 visitor for pleasure
• F-1 student
• H-1B, L-1, O-1, or TN, worker
• K-1 fiancé(e) of a U.S. citizen

Matter of Arai, 13 I. & N. Dec. 494 (BIA 1970) is the foundational Board of Immigration Appeals decision governing the exercise of discretion for purposes of adjustment of status under INA § 245(a). The respondent in Arai was a Japanese citizen admitted as a nonimmigrant visitor who remained beyond his authorized period, applied unsuccessfully for H (temporary worker or trainee) status, was granted voluntary departure, remained beyond the date he was required to leave, and then was found deportable. Crucially, no finding was made that the respondent had been anything other than a bona fide visitor when he first entered. He had no adverse factors: he was of good moral character, a labor certification had been issued, and his proposed employment was of potential benefit to the United States.

The Board in Arai clarified and superseded the overly demanding standards of earlier decisions, setting forth the following operative guidelines:

Where adverse factors are present in a given application, it may be necessary for the applicant to offset these by a showing of unusual or even outstanding equities. Generally, favorable factors such as family ties, hardship, length of residence in the United States, etc., will be considered as countervailing factors meriting favorable exercise of administrative discretion. In the absence of adverse factors, adjustment will ordinarily be granted, still as a matter of discretion.

Id. at 496.

In sum, when adverse factors are absent, adjustment will ordinarily be granted—but it remains discretionary, not automatic.^[6] When adverse factors are present, the applicant must affirmatively demonstrate that countervailing equities justify a favorable result; the heavier the adverse factors, the more “unusual or even outstanding” the required equities must be.

The BIA overruled the special inquiry officer’s finding that Arai did not merit a favorable discretionary finding.

a. Preconceived Intent to Immigrate

Admission to the United States as a nonimmigrant with preconceived intent to immigrate is a negative discretionary factor (unless entering in H-1B temporary worker status (or dependent), L-1 intracompany transferee status (or dependent), or K-1 fiancée or K-2 status).

In Matter of Ibrahim, 18 I. & N. Dec. 55 (BIA 1981), the Board denied adjustment, holding that preconceived intent to immigrate was not outweighed by having a U.S. citizen sibling.

Matter of Cavazos, 17 I. & N. Dec. 215 (BIA 1980), represents an exception. The case involved a citizen of Mexico who entered the U.S. with a border crossing card as a visitor and married his U.S. citizen girlfriend the same day. They gave birth to a child the following year. The Immigration Judge denied his application for adjustment of status on the basis that he had entered the United Stated with a preconceived intent to remain permanently. The Board reversed, holding that where the only adverse factor is preconceived intent to immigrate, it is outweighed by the positive factor of having a U.S. immediate relative, i.e., spouse, parent, or unmarried minor child.

Evidence of preconceived intent may include filing an adjustment application shortly after entry; gathering documents for an adjustment application before or immediately after entry; unauthorized employment beginning shortly after entry; having been previously denied an immigrant visa and then obtaining a nonimmigrant visa; fand the overall record of conduct suggesting the nonimmigrant trip was pretextual. See, e.g., Chen v. Foley, 385 F.2d 929 (1967) (“the record of the respondent’s employment and his persistent efforts to adjust his immigration status raises a doubt as to the bona fides of respondent’s entry as a nonimmigrant visitor for pleasure.”)

b. Exception: Preconceived Intent to Immigrate Is Not a Negative Factor for Certain H, L, O, and K Nonimmigrants

The Memorandum acknowledges that preconceived intent to immigrate is not a negative discretionary factor for “nonimmigrant categories with dual intent and immigrant categories where only adjustment of status provides a pathway to permanent resident status.”

Persons applying for H-1B (specialty occupation worker) and L-1 (intracompany transferee) visas or seeking to enter in such status are not required to prove they are not immigrants, under INA § 214(b). The same is true for their H-4 and L-2 dependents. Thus, they a preconceived intent to immigrate is not a negative discretionary factor.

For O-1 (aliens of extraordinary ability) and their O-3 dependents, approval of a labor certification or the filing of an immigrant visa petition does not preclude granting O-1 or O-3 status.^[7] The alien may legitimately come to the United States for a temporary period as an O-1 or O-3 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.^[8] So, preconceived intent to immigrate should not count as a negative discretionary factor.

K-1 fiancé(e)s and their K-3 children are admitted to the United States specifically for purposes of marrying a U.S. citizen within 90 days after admission^[9] and applying for adjustment of status.^[10] Since adjustment of status is specifically contemplated by the statutory scheme, preconceived intent to immigrate is not a negative discretionary factor.

c. Misrepresentation to the Consular Officer or at the Port of Entry

Misrepresentation of intent adds an additional layer of adverse weight beyond mere preconceived intent. When a nonimmigrant actively deceives the consular officer about the purpose of their trip, their ties abroad, their employment, or other material matters in order to obtain a nonimmigrant visa, that deception is treated as a serious and independent adverse factor in the discretionary analysis—even if the misrepresentation falls short of the level of misrepresentation or fraud required to trigger the statutory inadmissibility ground under INA § 212(a)(6)(C). Matter of Blas, 15 I. & N. Dec. 626 (BIA 1974).

Matter of Blas, 15 I. & N. Dec. 626 (BIA 1974, AG 1976) applied Matter of Arai’s rule for discretionary decisions to a situation where a person granted a nonimmigrant visa had a preconceived intent to immigrate to the United States. Blas involved a citizen of the Philippines who entered as a visitor in September 1970, overstayed his visa, divorced his foreign wife,^[11] entered into a bona fide marriage to a woman (who subsequently became a U.S. citizen) in 1973, and applied for adjustment as an immediate relative. The record showed that the respondent came to the United States with a preconceived plan: to leave his wife and four minor children in the Philippines, to divorce, to remarry a U.S. citizen or resident, and to remain indefinitely.

When he applied for his nonimmigrant visa, he stated his purpose was a “pleasure trip” of 35 days and made no disclosure of his true intention to remarry or of his adoptive parents residing in the United States. The Attorney General held that “these factual distortions … appear to have been intended to … mislead immigration officials concerning the true nature and purpose of respondent’s desire to enter the United States.” Id. at 643. While the distortions did not rise to the level of actual fraud, the Attorney General considered them to be a negative discretionary factor. In weighing that negative factor against the positive factor of his U.S. citizen wife, the Attorney General stated:

Here the misleading omissions which occurred, while not rising to the level of actual fraud, were in furtherance of a concerted plan calculated to produce the equity which respondent now asserts should support favorable exercise of administrative discretion—to wit, an American marriage. Such conscious construction of an equity must in the nature of things dilute the quality of that equity and abate its ability to counterbalance the adverse impact of actions committed to produce it. Although family ties will ordinarily result in favorable exercise of Section 245 administrative discretion, it is my opinion that they neither must nor should do so where it appears that the alien has engaged in a course of deception designed to produce those very ties.

In short, the Attorney General found that the respondent’s adjustment application should be denied as a matter of discretion where the negative factor (his deception of the consular officer) outweighed the most important positive factor (marriage to a U.S. citizen) because concealing his intent to marry and that he had U.S. citizen adoptive parents was part of his concerted plan to deceive the consular officer.

d. Hoped-for Adjustment: Not an Adverse Factor

A nonimmigrant who enters in genuine compliance with their nonimmigrant status—intending to depart as required—but who privately hopes that circumstances might allow them to eventually adjust status has not committed misrepresentation and presents no adverse discretionary factor based on intent. The distinction is between a secret hope and a fixed plan. As Matter of Barrios, 10 I. & N. Dec. 172 (BIA 1963), recognized, an alien who entered fully intending to comply with the terms of admission, “fully cognizant of the fact that he could not remain permanently unless permitted to do so lawfully,” does not present a case of circumventing the immigration laws. The Bolivian respondent in Barrios had previously been denied an immigrant visa, entered as a genuine visitor to see relatives and factories, and only after arrival, upon seeing an opportunity to work and study simultaneously, decided to apply for adjustment. The BIA granted relief, holding that the applicant did not formulate a specific intention to become a permanent resident until after arrival and that discretionary relief was warranted.

The line between permissible hope and impermissible preconceived intent is a fact-intensive determination. In Barrios, the respondent “was not decided about changing status to become a resident” and “wanted first to find out here about the circumstances and the opportunities.” Id. at 175. By contrast, the alien in Matter of Vega, 11 I. & N. Dec. 337 (BIA 1965), who had been denied a nonimmigrant visa on a first attempt, made misrepresentations on a second application, and had secured documents supporting an adjustment application both before and shortly after arrival, was found to have entered with a “preconceived intention to establish permanent residence” and was denied relief absent substantial equities. Id. at 338-339.

e. Change of Mind After Entry: The Permitted Pathway

Matter of Barrios, 10 I. & N. Dec. 172 (BIA 1963), stands for the principle that entry to the United States with genuine nonimmigrant intent but later formulation of a specific intention to become a permanent resident is not a negative discretionary factor for an adjustment of status applicant. See Matter of Blas, 15 I. & N. Dec. 626 (BIA 1974) (“Where the intention to remain here permanently was formulated after nonimmigrant entry, we authorized adjustment, Matter of Barrios, 10 I. & N. Dec. 172 (BIA 1963).”)

Courts and the BIA look to the totality of evidence regarding the genuineness of the original intent: the circumstances of the visa application, the timeline of events after arrival, the nature of the relationship or opportunity that supposedly triggered the “change of mind,” and whether the applicant’s conduct before and after entry is consistent with the claimed sequence.

4. Does the USCIS Memorandum Misrepresent Existing Law?

Here is how the Memorandum explains that adjustment of status is “extraordinary”:

Congress, in establishing the nonimmigrant admission and parole processes, made it clear that aliens are expected to depart the United States when the purpose of their admission or parole has been accomplished. Generally, when a nonimmigrant or parolee fails to depart as required and instead seeks adjustment of status, it contravenes these Congressional expectations, though USCIS acknowledges exceptions including nonimmigrant categories with dual intent and immigrant categories where only adjustment of status provides a pathway to permanent resident status. While aliens who were inspected and admitted or paroled may request adjustment of status, as a general matter the discretionary approval of such a request is extraordinary given Congress’s intent that aliens should depart once the purpose for which they sought parole or nonimmigrant admission from DHS has been accomplished.

Upon inspection, that paragraph is less of an explanation than incoherent word salad.

The idea that adjustment of status is “extraordinary” originates with a Federal court of appeals decision stating that adjustment of status is “extraordinary” in the sense that the traditional process to become a permanent resident involved applying abroad for an immigrant visa, and that Congress has authorized the alternative process of adjustment to be approved only as a matter of discretion. Chen v. Foley, 385 F.2d 929 (6th Cir. 1967), cert. denied, 393 U.S. 838 (1968). See Kim v. Meese, 810 F.2d 1494, 1497 (9th Cir. 1987) (citing Chen v. Foley for the proposition that adjustment of status is an “extraordinary” remedy). That’s true enough.

But the USCIS Director’s Memorandum gaslights the public in asserting that “when a nonimmigrant … seeks adjustment of status, it contravenes … Congressional expectations.” To the contrary, Congress enacted INA § 245(a) specifically to provide an alternative to applying for an immigrant visa abroad. House Report No. 1365, 82d Cong., 2d Sess., p. 63 (1952), described the statute as “specifically devised to obviate the need for departure and reentry in the cases of aliens temporarily in the United States.” Matter of S-, 9 I. & N. Dec. 548 (BIA, 1961). Thus, it is not unexpected that a person who satisfies Congress’s threshold eligibility criteria may apply for a benefit Congress made available. Calling an application for adjustment of status contrary to Congress’s expectation is like saying it is unexpected for a taxpayer to claim a deduction that Congress placed in the Internal Revenue Code.

The Memorandum fails to mention that a central purpose of the Immigration and Nationality Act is to keep families together. Congress implemented that purpose by exempting immediate relatives of U.S. citizens from ordinary numerical limits and by creating multiple family-sponsored preference categories. See INA §§ 201(b)(2)(A)(i), 203(a). The Supreme Court has recognized that the INA’s family preference provisions reflect Congress’s concern with reuniting families separated by the immigration laws. See Fiallo v. Bell, 430 U.S. 787, 795 n.6, 811–12 (1977). Where a noncitizen meets the other requirements for adjustment of status, USCIS’ “discretionary determination can either permit them to remain united or tear them apart.” See Matter of Blas, 15 I. & N. Dec. at 635 (626 (BIA 1974) (Roberts, Chairman, dissenting).

The best way to interpret this Memorandum is a follows: the Memorandum is correct that “as a general matter the discretionary approval of such a request is extraordinary” only in the sense that applying for an immigrant visa abroad is the ordinary procedure to apply for adjustment of status. Still the longstanding approach to interpreting INA § 245(a) is that entry to the United States with genuine nonimmigrant intent but later formulating an intent to become a permanent resident is not a negative discretionary factor for an adjustment of status applicant. See Matter of Blas, 15 I. & N. Dec. 626 (BIA 1974) (“Where the intention to remain here permanently was formulated after nonimmigrant entry, we authorized adjustment, Matter of Barrios, 10 I. & N. Dec. 172 (BIA 1963).”)

The Memorandum should not be interpreted as limiting approval of adjustment of status as a matter of discretion to cases with “extraordinary circumstances.” The Memorandum does not specify that requirement.^[12] It merely observes that “as a general matter the discretionary approval of such a request is extraordinary” in the sense that the ordinary procedure is to apply for an immigrant visa. The Memorandum by its very terms, merely “reminds officers” of the agency’s “longstanding approach” to adjudicating cases. That longstanding approach nowhere limits approval of adjustment of status as a matter of discretion to cases with “extraordinary circumstances.” On the contrary, under Matter of Arai, 13 I. & N. Dec. at 496:

Where adverse factors are present in a given application, it may be necessary for the applicant to offset these by a showing of unusual or even outstanding equities. Generally, favorable factors such as family ties, hardship, length of residence in the United States, etc., will be considered as countervailing factors meriting favorable exercise of administrative discretion. In the absence of adverse factors, adjustment will ordinarily be granted, still as a matter of discretion.

5. What Should an Adjustment of Status Applicant Do in Light of the New Memorandum?

First, hiring experienced counsel is more important than ever.

Second, in every case, before filing, applicants and their counsel need to analyze the positive and negative factors listed above, to evaluate what are the odds of denial of adjustment by USCIS as a matter of discretion. Then, if a decision is made to move forward with the application, evidence needs to be gathered to mitigate, explain, or rebut the negative factors and prove the positive factors. And a legal argument needs to be made that the application should be granted as a matter of discretion.

Third, to the extent that a USCIS officer may rely on this Memorandum to require “extraordinary circumstances” for adjustment of status, dispute that interpretation of the Memorandum.

Finally, if the application is denied by USCIS, consider challenging the denial, such as by a motion to reopen or reconsider, filing a new application before USCIS or before the Immigration Court (where this Memorandum is not binding), and/or litigation in Federal court.^[13]

Footnotes

1. Camilo Montoya-Galvez, Trump Administration to Require Most Immigrants Seeking Green Cards to Leave the U.S., CBS News (May 22, 2026). ↑
2. Jain v. Immigration and Naturalization Service, 612 F.2d 683, 686-687 (2nd Cir. 1979). ↑
3. INA § 245(a) (emphasis added). A 1960 amendment to this section was also motived by Congress’ attempt to reduce the administrative burden on consular offices, which were being flooded with applications from individuals who had to depart the United States temporarily solely to obtain immigrant visas. Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005). ↑
4. See Ka Fung Chan v. INS, 634 F.2d 248 (5th Cir. 1981). ↑
5. 7 USCIS-PM A.10(B)(2) (internal citations omitted). See USCIS Policy Alert, Impact of INA § 212(f) on USCIS Adjudication of Discretionary Benefits (PA-2025-26) (Nov. 27, 2025). See also Gary Chodorow, Following National Guard Shooting, Immigration Restrictions Imposed on Nationals from 19 “Countries of Concern” (Dec. 3, 2025) (describing Trump administration Policy Alert that, for nationals from a country of concern applying for discretionary immigration benefits, USCIS will consider as a “significant negative factor” the country’s insufficient vetting and screening information shared with the United States). ↑
6. The burden remains on the applicant to prove they merit a favorable exercise of discretion. Matter of Blas, 15 I. & N. Dec. 626, 630 (BIA 1974). ↑
7. 8 C.F.R. § 214.2(o)(13). ↑
8. Id. ↑
9. INA § 101(a)(15)(K). ↑
10. 8 C.F.R. § 214.2(k)(6). ↑
11. He and his wife had various differences. 15 I. & N. Dec. at 632. ↑
12. Where Congress intends to require extraordinary circumstances, the statute is explicit. For example, an application for asylum not filed within one year after the date of arrival in the United States may be considered only in “extraordinary circumstances.” INA § 208(a)(2)(D). And multiple Forms I-129F, Petitions for Alien Fiancé(e)s, may not be approved for the same petitioner within two years “except in extraordinary circumstances.” INA 214(d)(2)(B). Similarly, if Department of Homeland Security regulations intend to require extraordinary circumstances, the regulations are explicit. For example, An extension of nonimmigrant stay may not be approved if the applicant has failed to maintain their status, except that late filing may be excused if due to “extraordinary circumstances.” 8 C.F.R. § 214.1(c)(4). ↑
13. There is no administrative appeal of a denial by USCIS of a Form I-485, Application to Adjust Status. 8 C.F.R. § 245.2(a)(5)(ii). ↑