USCIS Policy Memorandum PM-602-0199
“Adjustment of Status is a Matter of Discretion and Administrative Grace”
Issued: May 21, 2026
AOS is not dead!
This policy memo is a significant signal that USCIS intends to take a stricter, more skeptical approach to AOS applications — particularly for individuals who entered on temporary visas or parole and chose to remain in the U.S. rather than pursue consular processing abroad. Applicants must now be prepared to affirmatively demonstrate not just eligibility, but that they genuinely deserve this extraordinary relief, with particular scrutiny on immigration compliance history, the circumstances of their entry, and their overall suitability as future permanent residents.
There are limited exceptions for immediate relatives, VAWA self-petitioners, and certain special immigrants.
USCIS issued this memo to formally remind both its officers and the general public that adjustment of status (AOS), the process by which a foreign national already inside the U.S. can obtain lawful permanent residence (a green card) without leaving the country, is not a right or entitlement. It is characterized as an act of “extraordinary” administrative grace and discretion. USCIS declares its intention to faithfully and consistently apply immigration statutes with this understanding going forward.
The memo draws on a long line of legal authority to support its position:
- Board of Immigration Appeals (BIA): Since at least Matter of Blas (1974), the BIA has consistently called AOS an “extraordinary” form of relief that “was not designed to supersede the regular consular visa-issuing process or to be granted in non-meritorious cases.”
- Supreme Court: Multiple Supreme Court decisions (Patel v. Garland, Kucana v. Holder, Elkins v. Moreno) have confirmed that AOS is “a matter of grace, not right.”
- Federal Courts: Circuit and district courts across the country have repeatedly described AOS as an extraordinary remedy, placing the burden of proof squarely on the applicant to show their case is meritorious.
- Statutory Authority: USCIS derives its authority from INA §§ 103(a)(3) and 245(a), with the Secretary of Homeland Security holding ultimate discretionary power over the lawful immigration system.
What Adjustment of Status Is — and Is Not
The ordinary process for obtaining a green card is through consular processing — meaning the applicant applies for an immigrant visa at a U.S. consulate or embassy abroad and then seeks admission at a port of entry. Congress designed this as the default pathway.
AOS is the exception, allowing certain foreign nationals already inside the U.S. to bypass consular processing entirely and obtain permanent residence without departing. Because it circumvents the ordinary process, courts and the BIA have consistently labeled it “extraordinary.”
The memo emphasizes that Congress deliberately built additional restrictions into AOS eligibility that do not apply to consular applicants abroad — further signaling a preference for the standard consular route.
However, the Immigration Nationality Act clearly outlines who is eligible for adjustment of status:
Basic eligibility under INA § 245(a) requires that an applicant:
- Be physically present in the United States
- Have been inspected and admitted or paroled into the U.S.
- Be admissible for permanent residence
- Meet other statutory requirements
Those generally ineligible include:
- Aliens who entered without inspection (i.e., crossed the border illegally without presenting to a border officer)
- Alien crewmen
- Those who accepted unauthorized employment before or after filing
- Those in unlawful immigration status at the time of filing
- Aliens admitted in transit without a visa
- Nonimmigrant visitors who entered without a visa under the Visa Waiver Program
- Those admitted under certain S visas (informants)
- Aliens deportable for terrorist activity
- Employment-based applicants not in lawful nonimmigrant status
- Those who violated the terms of a nonimmigrant visa
There are limited exceptions for immediate relatives, VAWA self-petitioners, and certain special immigrants.
The memo provides detailed guidance on how USCIS officers should exercise discretion:
Adverse (negative) factors officers must consider:
- Violations of U.S. immigration laws or the conditions of any immigration status
- Current or previous fraud or false testimony with USCIS or any government agency
- Whether the alien’s original admission or parole violated applicable laws or policies
- Conduct after admission inconsistent with the purpose of the visa or parole
- Failure to depart as expected described as “highly relevant,” especially when connected to an intent to permanently reside in the U.S.
- Overstaying a visa or parole period
- Working without authorization
Positive (favorable) factors officers must consider:
- Family ties in the United States
- Immigration history and status
- Moral character of the applicant
- Humanitarian considerations
- Any other relevant factor bearing on suitability for permanent residence
The balancing test: Officers must weigh all positive and negative factors in the totality of the circumstances to determine whether granting AOS is in the best interest of the United States. Adverse factors may need to be offset by a showing of “unusual or even outstanding equities” and critically, the mere absence of adverse factors alone is not enough to warrant approval.
The memo signals that USCIS will:
- Review all pathways to discretionary AOS in light of the “extraordinary grace” framework
- Examine discrete populations of AOS applicants (e.g., parolees, certain nonimmigrant categories) and potentially issue category-specific guidance to help officers identify which cases do or do not warrant approval
- Continue to apply the law on a case-by-case basis, but with a clear thumb on the scale toward the view that AOS is exceptional, not routine
However, the government touts returning to home countries for consular interviews without considering the 75 country pause on the issuance of immigrant visas currently in place. The government has created extraordinary circumstances of its own making.
It is more important now than ever to seek legal counsel from an attorney before filing.
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