USCIS adjustment of status discretion memo: what it means for H-1B, L-1 and F-1

As of October 21, 2026, the USCIS adjustment of status discretion memo, Policy Memorandum PM-602-0199, is still listed on USCIS's policy memoranda page (USCIS, Policy Memoranda), and the court docket in the case challenging it shows no order blocking it (CourtListener, docket). It does not stop anyone from filing Form I-485, and it does not change who is eligible. What it changes is the weight officers give to one fact: that an applicant chose to adjust status inside the United States rather than go through a US consulate abroad (USCIS, PM-602-0199).

For H-1B and L-1 workers, the memo acknowledges dual intent but says it is not enough on its own. For F-1 students, there is no such acknowledgement. On October 5, 2026, university faculty groups, unions and individual applicants sued to set the memo aside (AILA, press release, October 5, 2026).

What does the USCIS adjustment of status discretion memo actually say?

The memo is dated May 21, 2026, and is 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" (USCIS, PM-602-0199). USCIS announced it in a news release on May 22, 2026 (USCIS news release, May 22, 2026).

Its stated purpose:

"This memorandum reminds officers and the public that adjustment of status under section 245 of the Immigration and Nationality Act (INA) is a matter of discretion and administrative grace not designed to supersede the regular consular processing of immigrant visas." USCIS, PM-602-0199 (May 21, 2026), Purpose

The legal hook is real: INA section 245(a) says status "may be adjusted by the Attorney General, in his discretion" (8 U.S.C. 1255, govinfo). The new part is how the memo frames nonimmigrants who stay and adjust. It says Congress generally expects nonimmigrants and parolees to depart, and that trying to avoid consular processing is itself a negative factor:

"While such aliens may be otherwise eligible for adjustment of status, their contravention of this expectation and attempt to avoid the ordinary consular immigrant visa process, usually accompanied by their violation of our immigration laws, are adverse factors that the aliens may need "to offset…by a showing of unusual or even outstanding equities."" USCIS, PM-602-0199, pages 4 to 5 (quoting Matter of Blas, 15 I&N Dec. at 641)

The next sentence matters as much: "The absence of adverse factors, by itself, does not demonstrate such unusual or outstanding equities" (USCIS, PM-602-0199). A clean record, in other words, is not described as enough.

Compare that with the existing Policy Manual, which tells officers to weigh positive and negative factors and says unusual or outstanding equities may be needed "as negative factors grow more serious" (USCIS Policy Manual, Vol. 7, Part A, Ch. 10). In our reading, the memo moves that higher bar closer to the starting point for applicants who could have consular processed.

The memo's operative instruction applies "Where consular processing is available to an alien based on the immigrant category in which he or she seeks adjustment of status" (USCIS, PM-602-0199). Employment-based categories such as EB-1, EB-2 and EB-3 can be processed at a consulate after the immigrant petition is approved (USCIS, Consular Processing), so the instruction reaches most of our readers.

Is consular processing now the default?

The press release said so in plainer terms than the memo:

"From now on, an alien who is in the U.S. temporarily and wants a Green Card must return to their home country to apply, except in extraordinary circumstances." Zach Kahler, USCIS Spokesman, USCIS news release (May 22, 2026)

The memo itself does not use the phrase "extraordinary circumstances," does not require anyone to depart, and closes by saying it is guidance for USCIS personnel that "does not remove their discretion in making adjudicatory decisions" (USCIS, PM-602-0199). It says USCIS "may provide policy guidance specific to certain adjustment of status categories or discrete populations" (USCIS, PM-602-0199). As of October 21, 2026, USCIS's policy memoranda page lists no follow-up memo on adjustment of status (USCIS, Policy Memoranda).

Two days after the release, Kahler told Newsweek in an emailed statement that "People who present applications that provide an economic benefit or otherwise are in the national interest" will likely be able to continue on their current path, while others may be asked to apply abroad (Newsweek, May 24, 2026). That statement is not in the memo and has not been published as written USCIS guidance, so it is a signal, not a rule.

The scale is worth keeping in mind. In fiscal year 2024, 118,410 of the 171,120 people who received employment-based green cards adjusted status inside the US, and 41,900 of the 46,990 EB-1 green cards went to people who adjusted (DHS Office of Homeland Security Statistics, Yearbook 2024, Table 7).

How does the memo treat H-1B and L-1 dual intent?

The memo does not name H-1B or L-1. It refers to "nonimmigrant categories with dual intent" as one of the exceptions to the general expectation that nonimmigrants depart (USCIS, PM-602-0199). In the guidance section it adds:

"USCIS reminds its officers that applying for adjustment of status is not inconsistent with simultaneously maintaining nonimmigrant status in a category with dual intent." USCIS, PM-602-0199, page 5

Footnote 20 then limits that reassurance:

"However, maintaining lawful status in a dual intent nonimmigrant category is not sufficient, on its own, to warrant a favorable exercise of discretion." USCIS, PM-602-0199, footnote 20

Dual intent for H-1B and L-1 is statutory. INA section 214(h) says that being the beneficiary of a preference petition, or otherwise seeking permanent residence, "shall not constitute evidence of an intention to abandon a foreign residence" for H-1B, L and V nonimmigrants (8 U.S.C. 1184, govinfo). The memo does not dispute that. Our reading is that H-1B and L-1 holders who have maintained status should not be treated as having misused their visa, but they are still expected to show positive equities, such as their work, family ties and history, rather than relying on status alone. How much is enough is not defined anywhere in writing. For the mechanics of the I-485 itself, see what adjustment of status involves.

What about F-1 students and OPT?

F-1 is not a dual intent category. The statute defines an F-1 student as "an alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide student" (8 U.S.C. 1101(a)(15)(F), govinfo). So the memo's dual intent sentence does not cover F-1 students, including those on OPT or STEM OPT.

The memo tells officers to consider "any conduct of the alien after admission as a nonimmigrant or parolee inconsistent with the purpose of that nonimmigrant status or parole or with representations made to consular or DHS officers" (USCIS, PM-602-0199). It also says a failure to depart is especially relevant when it is connected to an intention to reside permanently "and the alien could have achieved that goal through the normal immigrant visa process" (USCIS, PM-602-0199).

The press release names "students" in its list of nonimmigrants whose visit "should not function as the first step in the Green Card process" (USCIS news release, May 22, 2026). An F-1 student who files an EB-1A or EB-2 NIW I-485 is not barred, but has less to lean on than an H-1B worker. If what you told a consular officer at your visa interview could look inconsistent with an early green card filing, raise it with your attorney before filing; our guide to what a misrepresentation actually costs explains why accuracy in past statements matters.

Do past status violations count for more now?

Eligibility rules are unchanged. INA section 245(c)(7) bars employment-based adjustment for someone "not in a lawful nonimmigrant status," and section 245(c)(8) covers unauthorized employment and other violations of a nonimmigrant visa (8 U.S.C. 1255, govinfo). Section 245(k) still forgives those bars for EB-1, EB-2, EB-3 and EB-5 applicants who were lawfully admitted and have not, "for an aggregate period exceeding 180 days," failed to maintain status, worked without authorization or otherwise violated their admission (8 U.S.C. 1255(k), govinfo).

The difference is that a violation forgiven for eligibility can still be weighed as a negative factor. The Policy Manual already allowed that (USCIS Policy Manual, Vol. 7, Part A, Ch. 10). The memo adds emphasis: a failure to comply with the conditions of admission and a failure to depart "are highly relevant to this analysis" (USCIS, PM-602-0199). In our view, even a short status gap forgiven under 245(k) now deserves an explanation in the file.

Does the memo apply to I-485s already pending?

The memo states no effective date and does not say how it applies to applications already filed (USCIS, PM-602-0199). The lawsuit alleges that the policies apply new standards to pending cases (Newsweek, October 7, 2026).

It interacts with a second policy. Policy Alert PA-2026-05, issued August 5, 2026, updated the Policy Manual on Requests for Evidence and Notices of Intent to Deny (USCIS, PA-2026-05). We cover it in denials without an RFE. Together, they mean an applicant may not get a second chance to add equities after filing.

One procedural point is in the memo's favor: when a denial rests on 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" (USCIS, PM-602-0199).

Leaving the US to consular process instead is not a casual switch. Under 8 CFR 245.2(a)(4)(ii), departing while an I-485 is pending abandons it unless you were granted advance parole before leaving, with an exception for H-1 and L-1 workers who remain eligible for H or L status, return to the same employer and hold a valid H or L visa if required (8 CFR 245.2, govinfo). See travel while an I-485 is pending.

What is the lawsuit challenging the memo?

The case is American Association of University Professors v. Mullin, No. 1:26-cv-14527, filed October 5, 2026, in the US District Court for the District of Massachusetts (CourtListener, docket). Plaintiffs include the AAUP and its Harvard and Boston University chapters, SEIU and two affiliates, Americans for Immigrant Justice, and six individual applicants (AILA, press release, October 5, 2026).

It challenges both the May memo and the August RFE policy, and asks the court to block and ultimately set them aside (AILA, press release, October 5, 2026). On October 16, 2026, the case was reassigned to Judge Allison D. Burroughs; as of October 21, the docket shows no motion for a preliminary injunction and no ruling (CourtListener, docket). According to Newsweek, the complaint's claims include exceeding USCIS authority, arbitrary and capricious action, skipping rulemaking, conflict with precedent and due process; a USCIS spokesman called the suit "yet another frivolous attempt" (Newsweek, October 7, 2026).

Status on October 21, 2026

What this means for you

If you are in H-1B or L-1 status with an approved or pending I-140, adjustment remains available and your dual intent status is acknowledged, but expect the officer to look for affirmative reasons to approve. If you are on F-1 or OPT, the memo gives you less cover, and the timing and consistency of your filing deserve more care. In either case, choosing between adjustment and consular processing is now a real decision rather than a default; our H-1B to green card timeline shows where it falls.

Where to start

If you are weighing an EB-1A or EB-2 NIW, the free evaluation compares your record with the criteria, and Frank finds real opportunities for the criteria you are missing. A strong, well-documented record is also the kind of positive equity this memo asks officers to look for. When you are ready, your petition is reviewed and filed by our partner law firm, Lai & Turner.

Sources

All checked October 21, 2026.

• USCIS, Policy Memorandum PM-602-0199, Adjustment of Status is a Matter of Discretion and Administrative Grace (May 21, 2026). The memo's text, quotes, dual intent language, footnote 20 and denial notice instruction.
• USCIS news release, U.S. Citizenship and Immigration Services Will Grant 'Adjustment of Status' Only in Extraordinary Circumstances (May 22, 2026). Announcement date and spokesman quote.
• USCIS, Policy Memoranda (accessed October 21, 2026). No follow-up adjustment of status memo listed.
• USCIS Policy Manual, Volume 7, Part A, Chapter 10, Legal Analysis and Use of Discretion (current as of October 2, 2026). Existing weighing standard.
• USCIS, Consular Processing (last updated July 20, 2023). How consular processing works after petition approval.
• USCIS, Policy Alert PA-2026-05, Evidence, Requests for Evidence, and Notices of Intent to Deny (August 5, 2026). The August RFE and NOID policy.
• 8 U.S.C. 1255 (INA section 245), govinfo. Discretion in 245(a), bars in 245(c)(7) and (8), and 245(k).
• 8 U.S.C. 1184 (INA section 214), govinfo. Dual intent for H-1B and L in 214(h).
• 8 U.S.C. 1101 (INA section 101), govinfo. F-1 definition and foreign residence requirement.
• 8 CFR 245.2, govinfo (January 1, 2025 edition). Effect of departure on a pending I-485.
• DHS Office of Homeland Security Statistics, Yearbook 2024, Table 7 (fiscal year 2024). Adjustment and new arrival counts.
• Newsweek, Green Cards: USCIS Says H-1B Visa Workers May Not Have to Leave US to Apply (May 24, 2026). Spokesman's economic benefit statement.
• AILA, New Lawsuit Challenges Administration Policies Threatening Green Card Applicants with Family Separation (October 5, 2026). Plaintiffs and relief sought.
• CourtListener, American Association of University Professors v. Mullin, No. 1:26-cv-14527 (D. Mass.), docket (filed October 5, 2026). Case name, number, court, filing date, October 16 reassignment, and no injunction motion or ruling as of October 21, 2026.
• Newsweek, USCIS Hit With Lawsuit Over Green Card Changes (October 7, 2026). Claims, pending-case allegation and USCIS response.

Frequently asked questions

Green Card Guide AI is not a law firm and this article is not legal advice. It describes evidence-building strategy in general terms; your attorney determines what belongs in your petition and how it's argued.