The Ordinary Made "Extraordinary": Why USCIS Adjustment of Status Memo Violates Congressional Mandate

On May 21, 2026, U.S. Citizenship and Immigration Services (USCIS) dropped a legal bombshell on the immigration community. Policy Memorandum PM-602-0199—boldly titled "Adjustment of Status is a Matter of Discretion and Administrative Grace, and an Extraordinary Relief"—instructs adjudicators to treat the standard inside-the-U.S. green card process not as a routine pathway, but as an exceptional privilege. By framing consular processing abroad as the "preferred default," the agency is attempting to force applicants into an unwritten, waiver-like standard where they must prove they are exceptionally "worthy" of staying with their families.

Make no mistake: while this memorandum clothes itself in the language of routine administrative reminder, it represents an unlawful attempt by the executive branch to override laws enacted by Congress and long enforced by the federal courts.

The Statutory Bedrock: INA § 245(a) vs. Executive Overreach

To understand why this memorandum is legally flawed, we must look to the actual text of the law. Under the Immigration and Nationality Act (INA), Congress explicitly established the mechanism for adjusting status.

INA § 245(a)

"The status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General [now the Secretary of Homeland Security], in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence, if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

The memo seizes on the phrase "may be adjusted... in his discretion" to claim that the government can categorically treat the entire process as a rare, "extraordinary" act of grace. However, this flips the legal definition of administrative discretion on its head.

In immigration law, discretion does not mean "absolute whim," nor does it grant an agency the authority to invent an entirely new burden of proof. For decades, the controlling precedent on this issue has been the Board of Immigration Appeals (BIA) decision Matter of Arai, 13 I&N Dec. 494 (BIA 1970). In Matter of Arai, the court established a clear framework: where an applicant meets the explicit statutory prerequisites set by Congress, and there are no significant negative factors in their record, the favorable exercise of discretion is presumed.

The new memo attempts to bypass Matter of Arai by inventing negative factors out of thin air. It instructs officers to weigh ordinary, legally permissible actions—such as entering on a valid nonimmigrant visa and later applying to adjust, or experiencing a temporary lapse in status—as negative equities that outweigh a person's eligibility.

Redefining Prerequisites as a "Higher Standard of Proof"

The memo argues that because Congress placed statutory restrictions and bars on certain applicants over the years (such as the entry and status bars found in INA § 245(c)), it intended for Adjustment of Status (AOS) to carry a fundamentally higher standard of proof.

This argument is a legal fallacy. The restrictions found in INA § 245(c)—such as bars for unauthorized employment or failing to maintain continuous lawful status—are statutory prerequisites, not discretionary metrics. Congress outlined exactly who is barred and explicitly wrote into law who is exempt from those bars (such as immediate relatives of U.S. citizens under INA § 245(c)(2)).

By instructing officers to use a legally forgiven status lapse or an authorized visa entry as a negative discretionary factor, USCIS is trying to resurrect bars that Congress deliberately chose to waive. A statutory prerequisite is a binary baseline: you either meet it or you do not. Meeting a requirement does not mean an applicant must then clear a secondary, hidden hurdle to prove they possess "extraordinary circumstances."

Erasing an Entire Class of Immigration: A Power Reserved for Congress

The executive branch does not have the constitutional authority to eliminate an entire category of immigration processing. That power belongs solely to Congress.

By instructing officers to treat consular processing abroad as the default and forcing domestic applicants to meet an "extraordinary" threshold, the memo effectively seeks to shut down the domestic AOS framework for the vast majority of eligible applicants. Under the guise of "refining discretion," the administration is functionally rewriting the law to eliminate a statutory pathway. The Supreme Court has repeatedly affirmed that agencies cannot use policy guidelines to frustrate clear congressional intent or fundamentally alter statutory schemes.

Dual Pathways: Why AOS and Consular Processing Differ

The memo implies that choosing AOS over consular processing is an attempt to "dispense with the ordinary visa process." This completely ignores why Congress created the dual pathways in the first place.

Congress created the AOS process in 1952 precisely so that people already lawfully inside the U.S. would not endure the extreme financial hardship, employment disruption, and forced family separation of traveling halfway across the world for a routine interview. For applicants with "dual-intent" visas like H-1B or L-1, Congress explicitly recognized their right to maintain temporary status while actively pursuing permanent residency from within the country. Treating the domestic pathway as a deviation contradicts the very logic of the statutory design.

Who Is Affected?

The policy memorandum applies strictly to Form I-485 (Application to Register Permanent Residence or Adjust Status).

• Employment-Based and Family-Based Petitions: This includes EB-1, EB-2 (including NIW), EB-3, EB-5, as well as immediate relatives and family preference categories.

• What is NOT Targeted: The memo specifically targets standard applications under INA § 245(a). Humanitarian-based adjustment pathways that operate under entirely separate statutory provisions—such as Asylum, VAWA (Violence Against Women Act), T Visas (Human Trafficking), and U Visas (Crime Victims)—are not the targets of this specific memorandum, as their discretionary standards are distinct and heavily weighted by humanitarian law.

Impact, Effective Date, and Next Steps

The memorandum was issued on May 21, 2026, and took effect immediately, applying retroactively to both newly filed applications and the massive backlog of cases currently pending with USCIS.

Because a denial of an I-485 under the current administration's strict enforcement guidelines can automatically trigger a Notice to Appear (NTA) in removal proceedings—and given that the Supreme Court’s ruling in Patel v. Garland severely limits the ability to appeal discretionary decisions—applicants must be aggressive and proactive.

For Pending Applicants:

Expect a surge in Requests for Evidence (RFEs) or heightened scrutiny during interviews. Work with legal counsel immediately to compile a robust Discretionary Equities Supplement. Do not wait for an RFE. This packet should include:

• Three years of pristine tax returns and stable employment records.

• Proof of deep community ties, property ownership, or local investments.

• Evidence of any medical, emotional, or financial hardship your U.S. citizen or LPR family members would face if you were forced to depart.

• Letters of recommendation from employers, civic organizations, or community leaders.

For Those Preparing to File:

The green card process has not been abolished, but the margin for error is now zero. Ensure your initial filing includes a comprehensive legal brief and a front-loaded package of positive discretionary factors alongside your standard eligibility documents.

The Legal Fightback:

The immigration advocacy community is not taking this sitting down. We anticipate Federal litigation with a filing of a lawsuit seeking an immediate temporary restraining order (TRO) and nationwide preliminary injunction to block USCIS from enforcing this memo. The argument in federal court will be clear: PM-602-0199 is an abuse of administrative power, an evasion of the Administrative Procedure Act (APA), and an unconstitutional attempt to rewrite the laws of the United States.

Disclaimer: This information is intended for general knowledge and informational purposes only, and does not constitute legal advice. It's essential to consult with an attorney for personalized guidance on your specific situation.

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