Adjustment of Status 2026
On May 22, 2026, USCIS issued Policy Memorandum PM-602-0199, reframing adjustment of status as “extraordinary” discretionary relief. For employers sponsoring foreign talent, students transitioning from F-1 to H-1B, and families navigating marriage- or relative-based petitions, this is not a minor procedural update. It is a meaningful change in how USCIS interprets its discretionary authority — and it demands a strategic response.
May 22, 2026
PM-602-0199 — Adjustment of Status & Discretion
“Extraordinary”
Case-by-case discretionary review
INA § 245(a)
Statute unchanged; interpretation tightened
10.5 months
Back to September 1, 2013 (June 2026 Bulletin)
What You Need To Know Right Now
Three things changed for the adjustment-of-status process on May 22, 2026: USCIS reframed AOS as discretionary “extraordinary” relief, the agency signaled that pending I-485s would be decided under the new framework, and dual-intent nonimmigrant status (H-1B, L-1) no longer functions as a discretionary shield.
The result is an environment where eligibility under INA § 245(a) is the floor — not the ceiling — for an approval. Every Form I-485 now needs an affirmative discretionary case, regardless of the underlying petition category.
Whether you are an employer, an attorney, or an individual with a pending or planned green card application, this guide covers exactly what changed, what the memo actually says, and what to do next.
What the USCIS Memo Actually Says
The May 22 news release states that, consistent with long-standing immigration law, applicants seeking adjustment of status must generally pursue consular processing through the Department of State outside of the country. USCIS officers are directed to weigh all relevant factors on a case-by-case basis before treating AOS as a permissible pathway.
USCIS Director Joseph Edlow said the agency is “returning to the original intent of the law,” stating that, from now on, an individual in the United States temporarily and seeking a green card must return to their home country to apply, except in extraordinary circumstances. Spokesman Zach Kahler added that nonimmigrants — including students, temporary workers, and tourists — should not treat a temporary visit as “the first step in the green card process.”
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In short: Adjustment of Status is no longer a default route. It is now framed as exceptional relief.
The Real Legal Standard: “Unusual or Even Outstanding Equities”
The phrase “only in extraordinary circumstances” appears in the USCIS press release and in agency public statements, but it does not appear in the operative text of PM-602-0199 itself. What the memo actually requires is that, where adverse factors exist, applicants overcome them by showing “unusual or even outstanding equities” — the standard articulated in Matter of Blas, 15 I&N Dec. 626, 641 (BIA 1974).
The memo further notes, in Footnote 20, that maintaining lawful status in a dual-intent nonimmigrant category is not sufficient, on its own, to warrant a favorable exercise of discretion — meaning H-1B and L-1 status no longer functions as a discretionary shield.
“
In short: Adjustment of Status is no longer a default route. It is now framed as exceptional relief.
The Real Legal Standard: “Unusual or Even Outstanding Equities”
The phrase “only in extraordinary circumstances” appears in the USCIS press release and in agency public statements, but it does not appear in the operative text of PM-602-0199 itself. What the memo actually requires is that, where adverse factors exist, applicants overcome them by showing “unusual or even outstanding equities” — the standard articulated in Matter of Blas, 15 I&N Dec. 626, 641 (BIA 1974).
The memo further notes, in Footnote 20, that maintaining lawful status in a dual-intent nonimmigrant category is not sufficient, on its own, to warrant a favorable exercise of discretion — meaning H-1B and L-1 status no longer functions as a discretionary shield.
Implications by Audience
Employers Sponsoring Foreign Talent
Dual-intent status remains statutory. But expect more RFEs on the “extraordinary” showing for I-485s, heightened pressure on EB-2/EB-3 India and China cases, and meaningful impact on workforce planning — longer onboarding, increased travel risk, renewed value in consular contingency planning.
F-1 Students & OPT Workers
The memo explicitly names students. Cap-gap H-1B transitions remain available, but downstream AOS from H-1B may now require foreign departure and immigrant-visa interview. The 90-day rule and § 212(a)(9)(B) unlawful-presence bars become significant where any prior overstay exists.
Family-Based Applicants
Immediate relatives of U.S. citizens retain § 245(c) exemption, but the discretionary layer is substantially heavier. Couples should still file, but with stronger evidence of bona fide relationship, U.S. ties, and hardship.
Pending I-485 Applicants
Policy is not declared retroactive, but case-by-case review applies to every officer’s next adjudication. Maintain underlying nonimmigrant status, avoid international travel without Advance Parole, and keep employment authorization current.
Practical Reality: Consular Processing Is Not a Shortcut
Consular processing is not faster than adjustment of status in 2026. Posts in India, the Philippines, and elsewhere face multi-month backlogs and frequent 221(g) administrative processing. The Department of State’s January 2026 suspension of immigrant visa processing for seventy-five countries, together with country-specific proclamation holds, has already extended offshore timelines considerably.
| Category | May 2026 FAD | June 2026 FAD | Movement |
|---|---|---|---|
| EB-1 India | April 1, 2023 | December 15, 2022 | Retrogressed 3.5 months |
| EB-2 India | July 15, 2014 | September 1, 2013 | Retrogressed 10.5 months |
| EB-2 China | October 1, 2020 | October 1, 2020 | No change |
| EB-1, EB-2, EB-3 Rest of World | Current | Current | No change |
Pushing applicants abroad will not, by itself, accelerate any case — and it exposes applicants to inadmissibility findings, family separation, and re-entry risk that adjustment of status was designed to avoid.
Will the Policy Hold? The Litigation Outlook
Expect litigation. In Saghafi et al. v. Edlow (D. Md., April 2026), the court issued a preliminary injunction restraining USCIS’s earlier hold memos against eighty-three named plaintiffs, reasoning that USCIS does not have discretion to decide not to adjudicate at all — language directly applicable to a memo that re-frames AOS as exceptional.
Until courts intervene, however, the memo is operative and officers are applying the new standard now.
USCIS Adjustment of Status 2026: Key Questions Answered
The questions below are the ones our attorneys have heard most often since the memo dropped. Treat the answers as a starting point for strategy, not a substitute for case-specific counsel.
Q1
My H-1B was not selected in the lottery, and I’m not from a backlogged country. Can I still get a green card?
Yes — and ironically, if you are not chargeable to India or China, you are in one of the strongest positions under the new memo. EB-1, EB-2, and EB-3 remain current for “Rest of World” applicants on the June 2026 Visa Bulletin, which means a properly prepared I-140 can be filed concurrently with an I-485 the moment the petition is approved.
The memo’s harshest discretionary scrutiny targets applicants whose conduct contradicts the purpose of their entry; an applicant pursuing EB-1A or EB-2 NIW self-petition on the merits of their record does not present that conflict. If you lost the H-1B lottery, the strategic playbook is to preserve lawful status (F-1 STEM OPT, O-1, E-2, L-1, or cap-exempt H-1B), build the EB-1A or EB-2 NIW evidentiary record, file the I-140 with premium processing, and file the I-485 concurrently while the priority date is current.
→ Lost the H-1B lottery? Kodem Law helps engineers, founders, and researchers pivot to EB-1A and EB-2 NIW.
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Q2
We sponsored our foreign employee’s employment-based green card. The I-140 is approved and we are filing the I-485. What now?
PM-602-0199 does not change EB eligibility, but it does change how every employment-based I-485 should be packaged. The memo’s Footnote 20 confirms that dual-intent status alone is not sufficient to warrant a favorable exercise of discretion — meaning H-1B and L-1 status no longer functions as a discretionary shield.
Employers and counsel should:
- Audit every pending I-485 for any adverse factor (overstay, gap, unauthorized work, prior misrepresentation, criminal history).
- Add a written “discretionary analysis memorandum” to each filing that affirmatively documents family ties, length of U.S. residence, tax compliance, employment record, charitable and community contributions, and the employer’s stake in the employee.
- For employees with adverse factors, run a serious AOS-vs.-consular processing analysis, factoring in the 3/10-year unlawful presence bars and I-601A provisional waiver options.
- For cases not yet filed, consider premium processing of the I-140 and concurrent filing where the bulletin permits.
For Schedule A occupations and Indian nationals, the Final Action Date for EB-2 India retrogressed by more than 10 months on the June 2026 Visa Bulletin (to September 1, 2013), so filing strategy must be re-sequenced.
→ Managing a pending I-485 portfolio?
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Q3
My fiancé(e) is visiting on a tourist or B-2 visitor visa. Can I marry her and apply for adjustment of status?
Legally, yes — but PM-602-0199 has made this the single highest-risk filing pattern in family-based immigration. Two doctrines now stack against you.
First, the 90-day rule in the Department of State’s Foreign Affairs Manual (9 FAM 302.9-4(B)(3)) creates a presumption of willful misrepresentation if a B-2 entrant marries a U.S. citizen and files Form I-485 within 90 days of entry, and USCIS has long incorporated that logic into its own adjudications under USCIS Policy Manual Vol. 8, Part J.
Second, the new memo instructs officers to treat AOS as a discretionary “act of administrative grace” and to weigh, as an adverse factor, conduct inconsistent with the purpose of a temporary admission — exactly the fact pattern this filing creates.
The safer paths in 2026 are usually (a) the K-1 fiancé visa, which is specifically designed for U.S. marriage and a follow-on I-485, or (b) marriage abroad followed by CR-1/IR-1 consular processing, which is often faster door-to-door and yields immediate work authorization on arrival.
→ Engaged to a U.S. citizen?
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Q4
Can I file a green card for my parents who are visiting on a B-2 tourist visa?
This is one of the most common — and most misunderstood — questions our firm receives. As the U.S. citizen petitioner (if you are 21 or older), your parents qualify as immediate relatives under INA § 201(b). Immediate relatives are statutorily exempt from many INA § 245(c) bars (status violations, unauthorized employment, certain VWP entries), and there is no visa-number wait.
However — and this is the new memo’s central twist — the discretionary layer in PM-602-0199 sits on top of those statutory exemptions. A B-2 entry followed quickly by an I-130/I-485 implicates both the 90-day preconceived-intent presumption and the memo’s “could-have-consular-processed” adverse factor.
In practice that means:
- Wait at least 90 days after the most recent B-2 entry, longer when possible.
- Document the parents’ continuing ties to their home country at the time of entry.
- Build the strongest possible equities packet (family unity, U.S. citizen children, grandchildren, medical needs, financial dependence).
- Seriously consider consular processing for parents who can travel — it eliminates the discretionary risk entirely.
Q5
Does it matter if I am the spouse of a U.S. citizen?
It matters enormously — but less than it did before May 22. As the spouse of a U.S. citizen, you are an immediate relative under INA § 201(b), which gives you (a) no visa-number wait, (b) statutory exemption from the § 245(c)(2), (c)(7), and (c)(8) bars, and (c) a clean path under INA § 245(a) if you were inspected and admitted or paroled.
PM-602-0199 does not touch any of that. What the memo does change is the discretionary analysis layered on top of eligibility. USC-spouse adjudications in 2026 are already showing higher rates of Stokes-style separated interviews, deeper bona-fides scrutiny, and more Requests for Evidence on the marital relationship.
The strategic response is to over-document the bona fides (joint finances, lease, insurance, tax filings, photographs across time, affidavits from family and friends, evidence of co-mingled lives), include a written discretionary memorandum, and for clients with adverse history, reassess whether CR-1/IR-1 consular processing with an I-601A provisional waiver is the cleaner path.
Q6
I was here on B-2 and applied for a green card. What happens to my pending case?
The memo does not contain an explicit retroactivity clause, but USCIS has indicated that PM-602-0199 governs adjudications going forward — including pending I-485s. That means an application filed before May 22, 2026 will be decided under the new discretionary framework when the officer picks it up.
Practical implications:
- Expect an increased likelihood of Requests for Evidence (RFEs) or Notices of Intent to Deny (NOIDs) focused on entry intent, the gap between entry and filing, and the failure to depart and consular process.
- Prepare a supplemental discretionary submission now, before USCIS asks — a proactive letter brief documenting positive equities can change the trajectory of a case at the interview stage.
- Review any pending Form I-131 advance parole — international travel during pendency now carries heightened risk of CBP scrutiny at reentry.
- Understand your fallback if denied — possible motion to reopen/reconsider under 8 C.F.R. § 103.5, refiling, or pivoting to consular processing with an I-601A waiver.
→ Pending I-485? Your case is in queue right now.
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Q7 What are “extraordinary circumstances” under the new USCIS policy?
This is the question that has generated the most confusion, and the answer is more nuanced than the press release suggests. The phrase “only in extraordinary circumstances” appears in the USCIS press release and in agency public statements, but it does not appear in the operative text of PM-602-0199 itself.
What the memo actually requires is that, where adverse factors exist, applicants overcome them by showing “unusual or even outstanding equities” — the standard articulated in Matter of Blas, 15 I&N Dec. 626, 641 (BIA 1974).
Equities most likely to satisfy the new framework include serious medical conditions in the applicant or a U.S.-citizen family member; CSPA age-out risks for derivative children; documented hardship to U.S.-citizen spouses, parents, or children; long-duration U.S. residence with deep community and tax ties; active U/T-visa or VAWA-adjacent humanitarian factors; military service of a family member; and country-conditions evidence where return is dangerous.
Equities unlikely to suffice alone include family proximity, convenience, employment continuity without more, or the absence of any negative factor.
Q8 Is the new policy forward-looking only, or does it impact prior filings?
PM-602-0199 is an interpretive policy memorandum — it does not amend any statute or regulation and was not put through APA notice-and-comment rulemaking. USCIS has positioned the memo as a “restatement” of long-standing law, which is the agency’s litigation insurance: it allows officers to apply the heightened discretionary standard to any case in adjudication, including those filed long before May 22, 2026.
In practice, that means:
- Pending I-485s will be decided under the new framework as officers reach them.
- Cases denied under the new standard are likely to face APA challenges, ultra vires arguments, and due-process challenges grounded in detrimental reliance — particularly where applicants made irrevocable life decisions based on the prior adjudication paradigm.
- Litigation is expected, paralleling the Saghafi v. Edlow and Doe v. Trump challenges to the country-specific hold memos.
- USCIS has signaled that category-specific follow-on guidance is coming for marriage-based, employment-based, and parolee adjustments.
The most prudent posture: assume the new standard applies to your case, build the discretionary record proactively, and preserve every objection for potential federal-court review.
Q9 Are H-4, L-2, or F-1 OPT dependents and students affected?
Yes, but unevenly. H-4 and L-2 dependents derive from dual-intent principal status and benefit from the memo’s acknowledgment that dual intent and AOS are compatible — but, per Footnote 20, dual-intent status alone does not establish the required equities. F-1 students face the steepest climb because F-1 is a single-intent classification, and any rapid pivot to I-485 invites both 90-day-rule and “preconceived intent” scrutiny. Students moving toward EB-1A or EB-2 NIW should consider a clean transition to H-1B, O-1, or cap-exempt H-1B before filing I-485 to avoid the single-intent discretionary penalty.
Q10 I’m an Indian national in EB-2. Should I bother with adjustment, given the June 2026 retrogression?
Per the U.S. Department of State June 2026 Visa Bulletin, EB-2 India’s final action date moved from July 15, 2014 to September 1, 2013, and EB-1 India retrogressed three and a half months to December 15, 2022. The Bulletin itself warns that further retrogression — or making the categories “unavailable” — may be necessary before fiscal year-end September 30, 2026.
For most India-chargeable applicants the immediate question is academic — your priority date is not current, so you cannot file the I-485 anyway. The longer-term strategic question is whether to maintain H-1B/L-1 status and wait for adjustment, or to pursue consular processing once the priority date becomes current. The memo tilts the calculus toward consular processing for applicants with any adverse history.
EB-5 reserved set-asides (Rural, High Unemployment, Infrastructure) remain current and are increasingly attractive for high-net-worth Indian applicants seeking to bypass the EB-2 backlog and the new discretionary risk.
Q11 Can I still travel on Advance Parole with a pending I-485?
Legally, yes — but the risk profile has worsened. Advance parole remains the standard travel document for I-485 applicants, and CBP must still admit a returning parolee with valid Form I-512L unless there is an independent ground of inadmissibility.
However, post-memo CBP secondary inspections of returning AOS applicants have become more probing, particularly for B-2-entry marriage cases, F-1-to-EB cases, and applicants from the 75 countries affected by the January 21, 2026 immigrant visa suspension. The current median I-131 Advance Parole processing time sits at approximately 6.1 months.
For H-1B and L-1 holders, the safer practice in 2026 is to travel on the underlying valid nonimmigrant visa stamp rather than advance parole — that preserves dual-intent status, avoids “paroled” classification on reentry, and reduces discretionary exposure on the pending I-485.
Q12 Does this memo affect asylum, U-visa, T-visa, VAWA, refugee, SIJS, or Cuban Adjustment Act cases?
No, or only marginally. PM-602-0199 governs adjustment under INA § 245(a). Refugee and asylee adjustments are processed under INA § 209; U-visa adjustments under INA § 245(m); T-visa adjustments under INA § 245(l); VAWA self-petitioners are carved out by INA § 245(c) itself; and SIJS adjustments are governed by separate statutory provisions. The memo also recognizes the Cuban Adjustment Act, NACARA § 202, HRIFA § 902, and Afghan/Iraqi Special Immigrant pathways as governed by separate regimes.
For these populations, eligibility and adjudication standards are largely unchanged — but applicants should still expect spillover scrutiny on background, identity, and security vetting.
Q13 What about DACA recipients and parolees?
DACA recipients themselves have no direct path through § 245(a) absent some other qualifying basis (marriage to a U.S. citizen, employer-based I-140), and the memo makes that already-narrow path narrower. Parolees adjusting under § 245(a) face direct exposure to the memo’s “failure to depart at the expiration of parole” adverse factor and the “could-have-consular-processed” scrutiny.
The litigation hold cases (Saghafi v. Edlow, Doe v. Trump, Meschi v. Edlow) and the December 2025 / January 2026 country-specific hold memos (PM-602-0192, PM-602-0193, PM-602-0194) compound the picture: parolees from the 75-country list face both adjudicative holds and the new discretionary standard. If you are a parolee with a pending I-485, the priority is preserving your existing status, monitoring ongoing federal litigation, and building a hardship and equities record now.
When to Get Counsel: A Triage Checklist
You should book an in-person or video consultation today if any of the following apply to you:
- ✓ You have a pending I-485 that has not yet been adjudicated.
- ✓ You entered on a B-1/B-2 or VWP and married, or plan to marry, a U.S. citizen or LPR.
- ✓ You are an Indian or Chinese national with an EB-2 or EB-1 priority date.
- ✓ You hold H-1B, L-1, O-1, E-2, F-1 STEM OPT, or TN status and are weighing AOS vs. consular processing.
- ✓ You are a parolee or are from one of the 75 countries subject to the January 21, 2026 immigrant visa suspension.
- ✓ You have any prior overstay, unauthorized employment, misrepresentation, or arrest in your immigration history.
- ✓ You have an aging-out derivative child or a CSPA timing concern.
- ✓ You filed Form I-131 for advance parole and have international travel planned.
How Can Kodem Law Help You?
Adjustment-of-status strategy is no longer a checklist exercise — it is a discretionary advocacy exercise. PM-602-0199 has converted what was, for many applicants, a routine procedural step into a case that must be affirmatively defended on its equities. For employers, that means revisiting workforce immigration plans and budgeting for longer timelines, additional documentation, and more contested adjudications. For individuals and families, it means filing with stronger evidence and a contingency consular strategy already in place.
Kodem Law works with employers, HR teams, in-house counsel, and individuals to audit pending and future I-485 filings for defensibility under the new discretionary standard, develop dual-track (AOS plus consular) strategies aligned to priority dates and business timelines, prepare Request for Evidence and Notice of Intent to Deny responses framed to the Matter of Blas “unusual or even outstanding equities” framework, and counsel on travel, status maintenance, and INA § 212 inadmissibility risk. Where administrative remedies fail, our immigration litigation practice represents clients in federal court.