Adjustment of Status After USCIS PM-602-0199

Zneimer & Zneimer P.C. is a Chicago law firm representing employers, professionals, families, and foreign nationals in immigration matters, including employment-based petitions, adjustment of status, consular processing, waivers, and complex immigration strategy. Our immigration practice monitors USCIS policy developments closely because even technical agency memoranda can affect real people, workplaces, families, and long-term immigration planning.

This article provides the public with a practical and legally grounded analysis of USCIS Policy Memorandum PM-602-0199. The memorandum has generated understandable concern because it discusses adjustment of status as a discretionary benefit and directs officers to weigh certain facts more carefully.  The memorandum does not end adjustment of status, does not repeal INA § 245, does not eliminate dual intent, and does not create a categorical bar to green card approval inside the United States.

This article offers general information and public legal analysis. It does not substitute for individualized legal advice, because adjustment strategy depends on the applicant’s immigration history, status, category, family facts, travel history, employment records, and admissibility issues.

USCIS Policy Memorandum PM-602-0199 changes the practical risk analysis for adjustment of status cases. The memorandum does not amend INA § 245. It does not categorically bar adjustment of status. It does not eliminate dual intent. But it changes the way USCIS officers may weigh discretion when a foreign national applies for lawful permanent residence from inside the United States rather than through consular processing abroad.

The central message is clear that adjustment of status remains discretionary, and USCIS now instructs officers to treat certain facts, including failure to depart after the purpose of admission or parole has ended, violations of nonimmigrant status, and efforts to avoid consular processing, as adverse factors in the discretionary analysis. At the same time, officers must weigh the totality of the circumstances, including positive equities such as family ties, employment, hardship, tax compliance, moral character, and lack of criminal history. USCIS also reminds officers that a denial based on discretion must explain the positive and negative factors and why the negative factors outweigh the positive ones.

The Legal Framework Emphasizes Discretion

Adjustment of status under INA § 245 has always involved two questions. First, does the applicant meet the statutory requirements? Second, if the applicant qualifies, should USCIS grant adjustment as a matter of discretion?

PM-602-0199 emphasizes the second question. USCIS describes adjustment as an “extraordinary” form of relief because it allows the applicant to become a permanent resident without leaving the United States for immigrant visa processing. The memorandum relies heavily on Matter of Blas, 15 I&N Dec. 626 (BIA 1974, A.G. 1976), which states that adjustment was not designed to supersede the regular consular visa process and should not automatically follow from statutory eligibility.

But Blas does more than support agency discretion. It also limits it. The Board stressed that decisions must rest on the facts of the particular case and must not rest on generalizations about groups of foreign nationals. The Attorney General’s controlling opinion likewise recognized that discretion requires standards, not private or unarticulated preferences. In other words, USCIS may exercise discretion, but it may not replace individualized adjudication with categorical suspicion.

That tension matters. PM-602-0199 frames adjustment as disfavored when consular processing could have occurred. Yet Blas itself cautions against the very type of group-based reasoning that could result if officers treat broad categories of applicants as presumptively undeserving.

What Has Changed in Practice

For many years, a well-prepared adjustment filing often focused on eligibility, including lawful admission or parole, visa availability, admissibility, medical exam, financial support, and the required forms. PM-602-0199 shifts more attention to discretion.

Applicants and employers should now expect USCIS to ask not only whether the applicant qualifies, but also whether the applicant deserves adjustment in the exercise of discretion. Thin filings carry more risk. A case that previously looked routine may now require an affirmative equity record.

USCIS may scrutinize whether the applicant maintained lawful status, whether the applicant worked without authorization, whether the applicant’s conduct remained consistent with the original nonimmigrant purpose, whether the applicant relied on a pending I-485 instead of maintaining an independent status, and whether the applicant appears to have used adjustment to bypass consular processing.

The Most Important Practical Point is to Maintain Status

For foreign national employees, the strongest defensive strategy is simple but critical – maintain lawful nonimmigrant status through the entire I-485 process whenever possible.

This matters most for employees in dual-intent categories such as H-1B and L-1. USCIS expressly recognizes that applying for adjustment is not inconsistent with maintaining a dual-intent status. But USCIS also states that dual-intent status alone does not guarantee favorable discretion. Employees should still maintain status, preserve payroll and employment records, document compliance, and build a positive equity record.

Employers should not assume that an employee can safely let H-1B or L-1 status lapse simply because the employee received an EAD or Advance Parole through a pending I-485. A pending I-485 provides a basis to remain while the application remains pending, but it is not the same as nonimmigrant status. Under PM-602-0199, loss of the underlying status may become a discretionary vulnerability.

Risk Categories for Employees

Employees in maintained H-1B, L-1, or O-1 status generally occupy the strongest posture, especially if the employer continues to sponsor and the employee can document lawful employment, tax compliance, and professional contributions.

Employees with prior gaps, unauthorized work, or status violations face higher scrutiny. Section 245(k) may preserve eligibility for some employment-based applicants despite limited status violations, but eligibility does not erase discretionary risk.

Employees in single-intent categories, including F-1, J-1, B-1/B-2, and TN, face the greatest practical sensitivity when they seek adjustment after a change in intent. These applicants should document that they maintained the original purpose of admission until a bona fide change in circumstances occurred. They should also include a robust equity package with the initial filing rather than waiting for a Request for Evidence or Notice of Intent to Deny.

Out-of-status applicants and applicants relying on statutory exceptions or grandfathering should prepare the strongest possible record. PM-602-0199 does not eliminate statutory eligibility, including eligibility under provisions such as § 245(i), but it makes the discretionary record more important.

Employer Planning

Employers with sponsored employees in the green card process should take immediate operational steps.

First, inventory all pending and anticipated I-485 cases. Identify the employee’s current status, expiration dates, I-94 history, EAD and Advance Parole expiration dates, priority date, family members, and case stage. Flag employees who rely only on a pending I-485 and no longer maintain H-1B, L-1, O-1, or another lawful status.

Second, file extensions on time. H-1B, L-1, and O-1 extensions should move well before expiration. Employers should calendar expiration dates aggressively and avoid gaps.

Third, avoid unnecessary international travel for employees with pending I-485s. Advance Parole remains legally available, but the policy environment increases risk. Where travel is unavoidable, employees should consult immigration counsel before departure and, where appropriate, travel in valid nonimmigrant status rather than parole.

Fourth, build employer-side equities. Employers should document the employee’s role, wages, promotions, specialized knowledge, project value, recruitment costs, training costs, retention concerns, and contributions to the U.S. economy or public interest. These records may matter in an RFE, NOID, motion, appeal, or broader litigation.

Fifth, accelerate PERM and I-140 strategy where appropriate. Approved I-140s preserve priority dates and can support H-1B extensions beyond the six-year limit under AC21. In a slower and more discretionary adjustment environment, maintaining a long-term nonimmigrant bridge becomes critical.

Employee Action Plan

Foreign national employees should also treat the I-485 as more than a forms filing.

Employees should preserve every approval notice, I-94, passport biographic page, visa stamp, pay stub, W-2, tax return, employment verification letter, school record, lease, mortgage record, community record, and family document. USCIS may weigh the full human and economic record, not just the statutory checklist.

Employees should avoid unauthorized employment. They should also avoid inconsistent conduct, especially if they hold or recently held a single-intent status. Students should preserve enrollment, transcripts, OPT records, and evidence of work in the field of study. TN employees should preserve proof of qualifying employment and compliance with the TN role.

Employees should not withdraw pending I-485s without a careful legal analysis. Withdrawal can forfeit filing fees, EAD and Advance Parole benefits, and, for some applicants, important protection against unlawful-presence consequences triggered by departure.

Employees who receive an RFE or NOID citing PM-602-0199 should not respond with a narrow document dump. The response should confront the discretionary theory directly. It should explain lawful status history, address any adverse factor, and marshal positive equities with declarations and documentary proof.

What Belongs in an Equity Package

A strong equity package should tell a disciplined, evidence-based story. Useful evidence may include:

1. Proof of lawful status maintenance, including I-94s, approval notices, pay records, and extension filings.
2. Employment evidence, including offer letters, job descriptions, promotion records, pay stubs, W-2s, work in medically underserved areas, research in the national interest, and employer support letters.
3. Tax compliance, preferably several years of federal and state returns.
4. Family ties, including marriage records, birth certificates, joint residence records, joint accounts, insurance, and school records for children.
5. Hardship evidence, including medical, financial, educational, and caregiving evidence.
6. Community contributions, including volunteer work, religious or civic participation, professional memberships, publications, awards, and letters from community leaders.
7. Absence of negative factors, including criminal history clearances where appropriate, and direct explanations for any lapse or inconsistency.

The goal is not volume for its own sake. The goal is a coherent record that shows why favorable discretion serves the applicant, the employer, the family, the community, and the United States.

Additional Issues to Consider

USCIS’s August 2025 PM-602-0188, Restoring a Rigorous, Holistic, and Comprehensive Good Moral Character Evaluation Standard for Aliens Applying for Naturalization made good moral character for naturalization subject to the “totality of the circumstances” inquiry.  In a Policy Alert PA-2025-16 in August 2025, USCIS also instructed USCIS officers to consider certain “anti‑American activities” and conduct described in a list of discretionary benefit applications, including AOS.  In August 2025, with PM-602-0189, Resumption of Personal Investigations of Aliens Applying for Naturalization (INA 335(a)) USCIS also renewed “neighborhood investigations” for applications.

Litigation Outlook

PM-602-0199 will likely generate litigation. The strongest challenges may focus on whether the policy changes prior practice without acknowledging reliance interests, whether it functions as a legislative rule without notice and comment, whether it misreads Matter of Blas, and whether officers apply it mechanically rather than through individualized adjudication.

The jurisdictional landscape remains complicated. Patel v. Garland limits judicial review of certain factual findings in discretionary relief cases, especially in removal proceedings. But Nakka v. USCIS preserved a path for collateral challenges to generally applicable policies and procedures. Other circuits may differ, which makes forum selection and record preservation important.

The Bottom Line

PM-602-0199 does not end adjustment of status. It changes the evidentiary burden and the risk calculus. Employers and employees should not panic, but they should stop treating adjustment as routine.

For employers, the priority is to maintain employees in valid nonimmigrant status, inventory pending I-485 cases, document business reliance, and coordinate early with immigration counsel.

For employees, the priority is to maintain status, avoid unnecessary travel, preserve compliance records, and build a full equity package before USCIS asks for one.

Adjustment of status remains available. But after PM-602-0199, the best-prepared cases will not merely prove eligibility. They will prove that favorable discretion is warranted.

Zneimer & Zneimer P.C. represents employers, professionals, families, and foreign nationals in complex immigration matters, including employment-based immigrant petitions, adjustment of status, consular processing, waivers, and litigation strategy. This article provides general information and does not constitute individualized legal advice.