USCIS Adjustment of Status Discretionary Review
Strategic Discretionary Immigration Representation in New Hampshire
On May 21, 2026, U.S. Citizenship and Immigration Services issued Policy Memorandum PM-602-0199, fundamentally changing how the agency approaches adjustment of status applications. The memorandum directs USCIS officers to treat adjustment of status not as a routine step in the immigration process, but as an extraordinary form of discretionary relief that permits applicants to bypass the standard consular visa process abroad. For families, workers, and individuals across New Hampshire who are pursuing or planning to pursue a green card from within the United States, this policy shift demands immediate attention and careful legal strategy.
At The Law Office of Jason M. Sullivan, PLLC, we are actively advising clients throughout New Hampshire, northern Massachusetts, and southern Maine on how this memorandum affects pending and future adjustment of status applications. New Hampshire immigration lawyer Jason M. Sullivan brings decades of experience in immigration law and is prepared to help clients build the strongest possible case under this new framework. If you have a pending I-485 application or are planning to file one, now is the time to seek experienced legal guidance.
What the USCIS Policy Memorandum Changes
The memorandum, titled “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,” does not eliminate adjustment of status. The process still exists under Section 245 of the Immigration and Nationality Act, and Form I-485 remains available. What has changed is the standard that USCIS officers are now instructed to apply when reviewing these applications.
Under the new guidance, USCIS officers are directed to conduct a totality-of-the-circumstances analysis for every adjustment application. This means that meeting the technical eligibility requirements for a green card is no longer enough on its own. Officers must now weigh all positive and negative factors in the record before deciding whether to approve the application as a matter of discretion. The memorandum makes clear that eligibility is the floor, not the finish line.
USCIS has signaled that it views consular processing through the Department of State, conducted outside the United States, as the standard pathway to permanent residence. Adjustment of status within the United States is now positioned as an exception to that standard, available only when the applicant demonstrates that the circumstances warrant it.
Discretionary Factors USCIS Officers Will Consider
The memorandum identifies a range of factors that officers are directed to evaluate when exercising discretion. Understanding these factors is essential for anyone preparing an adjustment of status application under the new framework.
Negative factors that may weigh against approval include violations of immigration laws or conditions of a prior status, prior instances of fraud or misrepresentation in dealings with government agencies, conduct after admission that was inconsistent with the purpose of the applicant’s visa or parole, and failure to depart the United States as expected. The memorandum specifically identifies the failure to depart, particularly when connected to an intention to permanently reside in the United States while a consular path was available, as a highly relevant adverse factor.
Positive factors that may support approval include strong family ties in the United States, including U.S. citizen spouses, children, and parents. Length of lawful residence, community involvement, tax compliance, employment history, and good moral character are all relevant considerations. Humanitarian factors and the overall equities of the case are also part of the analysis.
The memorandum references the balancing test from Matter of Mendez-Moralez, a longstanding Board of Immigration Appeals decision that requires officers to weigh positive equities against negative factors. However, the memorandum goes further by instructing officers that the absence of negative factors alone is not sufficient to demonstrate the unusual or outstanding equities needed to justify approval.
Who Is Most Affected by the New Policy
This memorandum affects every family-based and employment-based green card applicant who plans to adjust status from within the United States. However, certain categories of applicants face heightened scrutiny under the new guidance.
Applicants who entered the United States on single-intent nonimmigrant visas are among those most exposed. This includes individuals who entered on B-1 or B-2 visitor visas, F-1 student visas, or J-1 exchange visitor visas and subsequently filed for adjustment of status, often after marrying a U.S. citizen. The memorandum treats the decision to remain in the United States and pursue permanent residence as potentially inconsistent with the stated purpose of the original admission. The risk is particularly acute when the adjustment application was filed shortly after entry, where the agency’s existing 90-day rule may create a presumption of misrepresentation.
Applicants with any history of status violations, including overstays, unauthorized employment, or gaps in lawful status, also face increased scrutiny. Even where these issues do not render the applicant technically ineligible, the memorandum gives officers broader latitude to treat them as negative discretionary factors.
Applicants in dual-intent nonimmigrant categories, primarily H-1B, L-1, H-4, and L-2 visa holders, appear comparatively better positioned under the memorandum. The guidance acknowledges that these categories were designed by Congress to permit simultaneous maintenance of nonimmigrant status and pursuit of permanent residence. Applying for adjustment from a dual-intent status is not presumed to be inconsistent with the underlying visa. However, dual-intent status alone does not guarantee approval; officers are still directed to conduct the full discretionary analysis.
Family-based applicants, including spouses and children of U.S. citizens and lawful permanent residents, should be aware that this memorandum applies to their cases as well. While strong family ties are recognized as a positive factor, the memorandum makes clear that family relationships alone do not eliminate the requirement for a favorable exercise of discretion.
What This Means for Pending Applications
Applicants who already have a pending I-485 application should understand that this memorandum applies to cases currently under review. The guidance does not include a grandfather clause or effective date that exempts previously filed applications.
This does not mean that pending cases will automatically be denied. It does mean that USCIS officers reviewing pending applications may apply the heightened scrutiny outlined in the memorandum. Applicants who filed with a standard set of documents may now need to supplement their applications with additional evidence demonstrating positive discretionary factors.
Attorney Sullivan is working with clients who have pending adjustment applications to evaluate whether supplemental evidence should be submitted. In many cases, proactively building the discretionary record with documentation of family ties, community involvement, employment history, tax compliance, and good moral character can strengthen the case before it reaches an officer for review.
How to Build a Strong Discretionary Case
Under the new framework, adjustment of status applications must be treated as thorough legal submissions rather than routine form packages. The strongest cases will affirmatively document the positive factors that support a favorable exercise of discretion while directly addressing any negative factors in the record.
Evidence that can support a positive discretionary finding includes documentation of deep family ties in the United States, such as marriage certificates, birth certificates of U.S. citizen children, and evidence of shared household and family life. Letters from community members, employers, and civic organizations demonstrating the applicant’s contributions and ties to the community are also valuable. Tax returns, pay stubs, and employment records help establish a history of compliance and economic contribution. Evidence of good moral character, including the absence of criminal history, charitable contributions, and professional accomplishments, should be included.
For applicants with any adverse factors, the application should address those factors directly rather than hoping they will be overlooked. This may include explanations for prior status violations, evidence of remedial steps taken, and documentation of equities that outweigh the negatives.
Attorney Sullivan prepares adjustment of status applications with this level of thoroughness, ensuring that each filing presents the strongest possible case for a favorable discretionary outcome.
Travel Considerations Under the New Policy
The memorandum raises important questions about international travel for applicants with pending adjustment of status cases. Travel while an I-485 is pending has always carried risk, particularly for applicants who require advance parole. Under the current policy environment, that risk may be heightened.
Applicants should consult with an experienced immigration attorney before making any international travel plans while an adjustment application is pending. The decision to travel, and the manner in which reentry is handled, could become a factor in the discretionary analysis. Attorney Sullivan advises clients individually on travel risks based on their specific circumstances, visa category, and case posture.
The Importance of Experienced Legal Representation
This policy memorandum makes experienced legal representation more important than it has been at any point in recent memory for adjustment of status applicants. The shift from a largely eligibility-driven process to one that emphasizes discretionary analysis means that the quality of the application, the strength of the supporting evidence, and the strategy behind the filing can directly affect the outcome.
Attorney Jason M. Sullivan has decades of experience preparing and presenting adjustment of status cases. He has served as an expert witness in immigration matters, appeared in numerous media as an authority on immigration issues, and has guided thousands of individuals and families through the U.S. immigration system. That depth of experience is especially valuable now, when the margin for error has narrowed and the consequences of an inadequately prepared application have increased.
Clients of The Law Office of Jason M. Sullivan, PLLC receive the personalized, attentive representation that this moment demands. Attorney Sullivan reviews each case individually, identifies potential vulnerabilities, develops a strategy to address them, and prepares the application with the level of care and documentation that the new policy requires.
Frequently Asked Questions About the New Adjustment of Status Policy
Does this memorandum eliminate adjustment of status?
No. Adjustment of status still exists under the Immigration and Nationality Act, and Form I-485 remains available. The memorandum changes how USCIS officers evaluate applications by directing them to treat adjustment as extraordinary discretionary relief rather than a routine process.
Does this apply to my pending I-485 case?
Yes. The memorandum applies to all adjustment of status applications, including those already pending with USCIS. If your case has not yet been adjudicated, the heightened discretionary standard may apply to your application.
Am I safe if I am on an H-1B or L-1 visa?
Applicants in dual-intent visa categories are better positioned under the memorandum, but they are not exempt from discretionary review. Officers are still directed to conduct a totality-of-the-circumstances analysis for every case.
Should I rush to file my I-485 before the policy takes effect?
The memorandum does not include a specific effective date that triggers different treatment for earlier filings. Rushing a poorly prepared application is more likely to create problems than to avoid them. The priority should be building the strongest possible filing with thorough documentation of positive discretionary factors.
What should I do if I have a pending application?
Contact an experienced immigration attorney to evaluate whether supplemental evidence should be submitted to strengthen your case under the new discretionary framework. Proactive steps taken now can make a meaningful difference.
Can I still travel internationally with a pending I-485?
Travel while an adjustment application is pending carries risk that may be heightened under the current policy. Consult with an attorney before making any international travel plans to understand how travel could affect your specific case.
Contact a New Hampshire Immigration Lawyer About the New Adjustment of Status Policy
The USCIS policy memorandum on adjustment of status represents the most significant change to the green card process in years. Whether you have a pending I-485 application, are preparing to file, or are uncertain about how this development affects your immigration plans, The Law Office of Jason M. Sullivan, PLLC is ready to provide the experienced guidance and thorough preparation that this moment requires. Contact our office today to schedule a consultation with New Hampshire immigration lawyer Attorney Jason M. Sullivan and take the next step toward protecting your future in the United States.
