AOS Memo (PM-602-0199)

USCIS' new policy memorandum (PM-602-0199) dated May 21, 2026, is causing a stir in the immigration world. The Memo purports to change the manner in which adjustment of status has allowed aliens to become lawful permanent residents without having to leave the USA so long as a few conditions were met.

In place of that rubric, the Memo provides guidance that urges its staff to conduct an analysis of whether consular processing is available to a particular applicant. If so, then "in determining whether the alien warrants a favorable exercise of discretion officers are to consider the consistent understanding of the courts and the BIA that adjustment of status is an extraordinary discretionary relief to the regular immigrant visa process and is an act of administrative grace." Memo at 5, (italics added).

And officers are to employ a totality of the circumstances test in evaluating all evidence. At the very least, this process should delay the adjudication of adjustment applications since conducting a thorough review of all the evidence in the record will often be time consuming.

"USCIS reminds officers that when they deny a benefit request, they must issue a denial notice explaining in writing the specific reasons for denial. When the denial is based on an unfavorable exercise of discretion, the denial notice must include an analysis containing the positive and negative factors considered, along with an explanation of why the negative factors outweigh the positive factors in the decision." Id. at 6.

Expect litigation from the many, many applicants this new policy will impact. USCIS' new policy is a substantive change to the status quo (even if the Memo suggests otherwise) and will probably be challenged for failing to going through notice and comment rulemaking. Moreover, the new policy seems to be inconsistent with the Immigration and Nationality Act (INA) Section 245.