Analysis: USCIS Policy Memo Regarding Discretionary Nature of Adjustment of Status
Overview
On May 21, 2026, United States Citizenship and Immigration Services (USCIS) issued a policy memorandum that claims that Adjustment of Status (AOS), a benefit obtained by filing a Form I-485 Application for Adjustment of Status to USCIS, is a benefit granted as a “matter of discretion and administrative grace,” and is an “extraordinary” form of relief rather than entitlement — even where statutory eligibility is met. While AOS is a discretionary benefit pursuant to the Immigration and Nationality Act (INA), this restrictive interpretation is novel and contradictory to the text of federal law, the implementing regulation, and past precedent.
The memo signals a potentially more restrictive adjudicatory posture, placing increased emphasis on discretionary analysis. However, the scope and practical impact of this memo are still unclear.
Key Points from the Policy Memo
1. Adjustment of Status Is Not a Right
USCIS reiterates that AOS is a matter of “administrative grace” and may be denied even where all statutory requirements are satisfied. Applicants must demonstrate they merit a favorable exercise of discretion. The memo also claims that AOS is an exception to the ordinary consular visa process and should not be used to “circumvent” immigrant visa processing abroad.
2. Renewed Focus on Discretionary Factors
Officers must evaluate each case under a totality-of-the-circumstances framework, weighing adverse factors such as status violations, fraud, or failure to comply with admission terms against positive equities such as family ties, humanitarian considerations, and good moral character.
3. Focus on Nonimmigrants and Parolees Who Are Admitted for a Temporary Period
USCIS emphasizes that nonimmigrants and parolees are expected to depart the US upon completion of their authorized stay. Remaining in the US as a nonimmigrant or parolee and seeking AOS may weigh negatively in discretionary determinations.
The scope of this provision remains unclear, and we suspect that AOS applicants who have maintained valid nonimmigrant employment visa status will remain eligible for AOS.
4. Decision-Making Guidance
Adjudicators must issue written decisions explaining the balancing of positive and negative factors in discretionary denials. Factors to be considered include:
Positive Factors
- Strong family ties in the US
- Long-term residence and stability in the US
- Compliance with immigration laws
- Good moral character and community standing
- Employment history and economic contributions
- Business, property, or professional ties
- Humanitarian and hardship considerations
- Military or public service
- Evidence of rehabilitation (if prior issues exist)
Negative Factors
- Immigration status violations
- Unauthorized employment
- Fraud or misrepresentation
- Preconceived immigrant intent / inconsistent conduct
- Unlawful presence or failure to depart
- Criminal history or adverse conduct
- Prior removal, deportation, or exclusion orders
- Noncompliance with US laws
- Lack of ties to the US
- Income from unlawful activity
- National security / ideological concerns
- General lack of merit / weak equities
Legal Issues With the Policy Memo
The policy memo ignores multiple aspects of established law that support the ability for nonimmigrants and parolees to apply for AOS, including:
- 8 C.F.R. § 245.1, which provides statutory eligibility and states that absent any specific factor for ineligibility listed in the regulation, “Any alien who is physically present in the United States may apply for adjustment of status to that of a lawful permanent resident of the United States if the applicant is eligible to receive an immigrant visa and an immigrant visa is immediately available at the time of filing of the application.”
- 214.1 of the INA states, “At the time of admission or extension of stay, every nonimmigrant alien must also agree to depart the United States at the expiration of his or her authorized period of admission or extension of stay, or upon abandonment of his or her authorized nonimmigrant status.” This section of the INA, combined with the regulation at 8 C.F.R. § 245.1, makes nonimmigrants eligible for AOS.
- Matter of Arai, 13 I&N Dec. 494 (Board of Immigration Appeals 1970) states that when an applicant for AOS has adverse factors, those factors must be offset by a showing of “unusual or even outstanding equities.” However, where no adverse factors exist, “adjustment will ordinarily be granted.”
This policy memo from USCIS will likely face legal challenges if it is used to deny an application for AOS for a qualified applicant.
Conclusion
This policy memorandum provides USCIS with broad discretionary authority to adjudicate AOS applications. We expect that there will be clarifying guidance issued in the coming weeks. Mintz will provide further updates to this policy memo as they become available.
Please contact a member of the Mintz Immigration team for more information: Mintz Immigration Practice
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