USCIS Memo PM-602-0199, Explained Calmly: Why Adjustment of Status Has Always Been Discretionary — and What That Means for Your Case

What actually changed

Nothing, legally. USCIS PM-602-0199, issued May 21, 2026, is a reaffirmation of law that has lived in INA § 245(a) since 1952. Adjustment of status — applying for your green card from inside the United States — has always been discretionary. The statute says the Attorney General "may" adjust an applicant's status, not "shall." Forty-eight years of Board of Immigration Appeals case law, three Supreme Court decisions, and every edition of the USCIS Policy Manual have repeated the same rule. The May 2026 memo simply asks adjudicators to write down the positive and negative factors they weighed when they grant or deny a case.

If you and your attorney have been preparing your case the way the Board of Immigration Appeals laid out in Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996) and Matter of Marin, 16 I&N Dec. 581 (BIA 1978), the memo asks you to do nothing differently. The clients we represent are already prepared for the totality-of-circumstances analysis, because we build the discretionary record from intake forward.

What the memo says in plain English

PM-602-0199 directs officers to:

• Frame § 245(a) adjustment as extraordinary discretionary relief rather than the default path — language that has been in BIA case law since Matter of Patel, 17 I&N Dec. 597 (BIA 1980), and was reaffirmed by the Supreme Court in Patel v. Garland, 596 U.S. 328 (2022).
• Weigh totality of circumstances using the positive and negative factors catalogued in Mendez-Moralez and Marin — family ties, length of residence, tax compliance, community involvement, hardship to U.S.-citizen relatives, character references, evidence of rehabilitation, and so on.
• Treat failure to depart after a lawful admission expires as an adverse factor requiring "unusual or even outstanding equities" to offset, citing Matter of Blas, 15 I&N Dec. 626 (BIA 1974), aff'd, 556 F.2d 586 (9th Cir. 1977).
• Preserve dual intent for H-1B, L, and O nonimmigrants — but note that dual intent alone is not sufficient for a favorable exercise of discretion. The equities still have to be on the record.
• Issue a written positive/negative factor analysis in every discretionary denial notice. This is actually good for applicants: a written analysis is reviewable.
• Leave intact every statutory carve-out: VAWA self-petitioners under § 245(c), § 245(h) (special immigrant juveniles), § 245(i) (grandfathering through prior filings), § 245(m) (U-visa adjustment), § 209(a)(2) (refugees and asylees), HRIFA, NACARA, and NDAA § 7611 SIVs. If your path runs through one of those provisions, the discretionary framework does not even apply to you in the same way.

Why discretion was always part of § 245(a)

The phrase "may, in his discretion" appears in the text of § 245(a) itself. From 1952 forward, every BIA panel that has addressed an adjustment denial has analyzed it as a discretionary decision. The Supreme Court confirmed it again in Patel v. Garland, holding that federal courts cannot even review discretionary AOS denials on the merits — the regime is so clearly discretionary that judicial review is statutorily barred for the discretionary component. The Mendez-Moralez factor list — family ties, length of residence, history of employment, property, business ties, value to the community, evidence of genuine rehabilitation, character — has been the test for thirty years.

What the memo signals is a stylistic shift, not a substantive one: officers are now expected to make the analysis explicit on the denial form. Cases prepared with a clean equities record have always done well under this standard. Cases prepared without one have always struggled. That has not changed.

The Mendez-Moralez factor inventory we already use

The first thing that happens at intake here is a written equities inventory. We map every positive factor on the Mendez-Moralez list:

• Family ties — qualifying U.S.-citizen and LPR spouse, children, parents, siblings; the hardship to each of them if relief is denied.
• Length of residence — every entry and exit, every period of authorized presence, every period of out-of-status presence honestly accounted for.
• Employment history — W-2s, 1099s, tax returns, employer letters; even unauthorized work is documented because § 245(c)(2)/(8) exceptions and waiver options turn on the facts.
• Property and business ties — leases, mortgages, business filings, vehicle titles.
• Service to the community — church, mutual-aid groups, school volunteering, coaching, neighborhood involvement.
• Tax compliance — every filed return for every year the client has earned income, including ITIN-only returns. Where filings are missing, we file delinquent returns before the adjustment package goes in.
• Character evidence — letters from employers, clergy, teachers, coaches, neighbors, civic leaders.
• Rehabilitation evidence, where any adverse factor exists — completion certificates, sobriety records, post-conviction relief, restitution receipts, vacated convictions.

Then we map the adverse side: overstays, prior immigration filings, criminal contacts, prior denials, prior misrepresentations, prior removal orders. Each adverse factor is paired in writing with its cure: the waiver, the remedy, the corroborating evidence, or the procedural posture that addresses it.

Adverse factors and the cures we deploy

The point of the Mendez-Moralez / Marin framework is not that adverse factors disqualify an applicant. It is that adverse factors must be outweighed by equities. Here is how the most common adverse factors are addressed inside an AOS file:

• Overstay after lawful admission (the Matter of Blas factor) — addressed by an equities binder, qualifying-relative hardship declarations, employment and tax history, and where the applicant is an immediate relative of a U.S. citizen, the statutory shield in INA § 245(a) and (c)(2). The May 2026 memo's reference to Blas changes nothing for immediate-relative cases: the statute itself shields them.
• Prior misrepresentation under INA § 212(a)(6)(C)(i) — addressed by an I-601 waiver where a qualifying relative would suffer extreme hardship, supported by a hardship declaration, a country-conditions report, and medical/psychological evaluations where relevant.
• Crimes involving moral turpitude or controlled-substance violations under INA § 212(a)(2) — addressed by post-conviction relief (vacatur for legal defect, expungement where it counts under federal immigration law), INA § 212(h) waiver where statutorily available, and rehabilitation evidence under Matter of Mendez-Moralez.
• Prior removal order under INA § 212(a)(9)(A) — addressed by Form I-212 consent to reapply, filed concurrently with the adjustment package, supported by rehabilitation evidence and equities.
• Public-charge concerns under INA § 212(a)(4) — addressed by a fully supported I-864 with joint sponsors where the principal sponsor's income is below 125% of the federal poverty guidelines, plus assets, household-size analysis, and the totality-of-circumstances showing under 8 C.F.R. § 245.
• Unauthorized employment for non-immediate-relative beneficiaries — addressed by INA § 245(k) for employment-based applicants (180-day grace), § 245(i) grandfathering for those with qualifying pre-2001 filings, or by re-routing to the consular process where the AOS bar is insurmountable.

Note: a discussion sometimes arises about provisional unlawful-presence waivers. Those are tied to consular processing outside the United States and are not the right tool for an inside-the-U.S. adjustment file. For AOS, the relevant waiver vehicles are I-601 (most grounds of inadmissibility) and I-212 (consent to reapply after removal). We mention this only because confusion between the two pathways causes real delays.

Who is not affected by the memo

The carve-outs in the statute remain exactly where they were:

• VAWA self-petitioners under INA § 245(a)/(c) — Congress wrote § 245(c) explicitly to exempt VAWA self-petitioners from most of the adjustment bars. The discretionary framework still exists, but the deck is statutorily tilted toward survivors.
• Refugees and asylees under INA § 209(a)(2) — adjustment for refugees and asylees is not discretionary in the same way. The Attorney General "shall" adjust the status of an asylee who meets the criteria; the Mendez-Moralez totality balancing is far narrower in scope.
• HRIFA, NACARA, and NDAA § 7611 SIV adjustments — each has its own statutory framework. PM-602-0199 explicitly preserves them.
• § 245(i) grandfathered applicants — the statutory shield in § 245(i) remains intact; the memo does not touch it.
• § 245(h) special immigrant juveniles — SIJS adjustment remains governed by its own framework.
• § 245(m) U-visa principals and derivatives — U-visa adjustment is its own regime; the broader discretion memo does not displace it.

If your case sits in any of these categories, the May 2026 memo is largely a non-event for you.

Dual intent for H-1B, L, and O — what changed and what did not

The memo explicitly preserves dual intent: an H-1B, L, or O nonimmigrant can still pursue adjustment of status without that pursuit being held against the nonimmigrant petition. The substantive change is narrow: dual intent on its own is not a positive factor that outweighs everything else. The applicant still needs the equities packet. In practice, dual-intent applicants almost always have strong equities (employment history, tax compliance, employer-sponsored petition, often U.S.-citizen children) — so this is more a documentation point than a strategic one.

What a well-prepared AOS file looks like

By the time we file an I-485 here, the file already contains:

1. A written admissibility memorandum naming every potential ground of inadmissibility, the supporting evidence for each one, and the waiver or strategy that addresses it. The client signs the memorandum.
2. A Mendez-Moralez equities inventory with documentary support for every positive factor on the list.
3. Hardship declarations from every qualifying U.S.-citizen or LPR relative who would suffer harm if the case is denied.
4. Tax compliance for every year the client has earned income.
5. Character references from employers, clergy, civic leaders, and long-term community members.
6. Where any adverse factor exists, rehabilitation evidence and the cure filed concurrently: I-601 for inadmissibility waivers, I-212 for prior removals, I-864 with joint sponsors for public-charge analysis, vacatur orders for criminal contacts.
7. A G-639 FOIA for the A-file completed before filing, so we know what the government knows.

That is the file that has always done well under § 245(a). It does well today. It will do well after the May 2026 memo, because the memo is asking officers to evaluate exactly the kind of file we have always built.

Closing reassurance

Adjustment of status has always been discretionary. The May 21, 2026 memo simply restates that. The clients we represent are already prepared for it, because we build the discretionary record from day one. If you are in the middle of an AOS process and you are worried about how the memo affects your case, schedule a consultation. A short conversation with an attorney who can see the underlying facts is the difference between a guess and a plan.