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IMMIGRATION JUNE 05, 2026 | The Indian Eye 40

USCIS New Policy

Limiting Adjustment of Status ligibility

Is Bad Policy and Contrary to Law

BY CYRUS D MEHTA AND which eligible applicants rou- tus is a discretionary benefit discretionary factor. USCIS ticularly employment-based
DAMIRA ZHANATOVA* tinely adjusted status from pursuant to INA 245(a), it says that, with limited excep- applicants in H-1B or L-1
within the United States in has never been interpreted tions, the statutory scheme status and family-based im-
s previously addressed both employment-based and as an “extraordinary” form suggests that Congress ex- mediate relatives of U.S.
here, on May 21, 2026, family-based categories. The of relief. The characteriza- pects paroled and nonim- citizens, were not treated as
AUSCIS issued Policy policy is expected to have tion of adjustment of status migrant entrants to depart asking for “extraordinary”
Memorandum PM-602-0199 substantial consequences for as “extraordinary relief” is and pursue immigrant visas relief merely because they
(“memo”), announcing that employers, families, and in- not present anywhere in the abroad, and it notes that ap- sought to adjust status rather
filing an I-485 adjustment dividuals who have relied on INA and would surely have plicants who do not depart than depart for consular pro-
of status (AOS) application adjustment of status as the been spelled out by Congress typically have violated status, cessing. The new memo aims
in the United States will be central mechanism for ob- if this was, in fact, its intent. overstayed, or engaged in to reverse that presumption
treated as an “extraordinary” taining permanent residence. USCIS’s interpretation of the unauthorized employment. by recasting AOS as an act of
form of relief and empha- The standard set forth word “may” in INA 245(a) to The memo invokes Matter “administrative grace” that
sizing that most individuals in this memo is not only an mean “extraordinary” is not of Blas for the proposition should generally yield to con-
seeking permanent residence abrupt upheaval of estab- only illogical, but contrary that such adverse factors may sular processing.
should instead complete lished USCIS policy, but to the meaning of the statute need to be offset by “unusu- This interpretation de-
immigrant visa processing also in contravention of the and to longstanding USCIS al or even outstanding equi- pends heavily on a novel
abroad through a U.S. con- law. INA 245(a), codified policy. ties,” while explicitly stating reading of the word “may” in
sulate. USCIS presents this at 8 U.S.C. 1255(a), states The memo’s core mes- that the mere absence of INA 245(a). The statute pro-
as a reaffirmation of a “con- only that “Any alien who sage is that adjustment of adverse factors is not enough vides that the status of an el-
sistent and longstanding ap- has been lawfully admit- status is not the norm but an to show such equities. What igible alien “may be adjusted
proach” and a return to the ted for temporary status… exception. USCIS repeat- the memo does not mention, by the Secretary, in his discre-
“original intent” of INA 245, such status not having been edly characterizes AOS as however, is that the BIA’s tion.” That language plainly
but the practical effect is a terminated, may apply for “a matter of discretion and precedent decision in Matter grants discretion, but it does
sharp break from decades adjustment of status…” Al- administrative grace,” cit- of Arai is still the law. In Mat- not say that adjustment must
of adjudicatory practice in though adjustment of sta- ing decisions such as Matter ter of Arai, the Board held be “extraordinary,” rare,
of Blas, where the BIA that where there are adverse or disfavored. Elsewhere
characterized adjust- factors weighing against the in the immigration statute,
ment as discretionary approval of an adjustment Congress has explicitly used
relief and described it as of status application, the heightened standards like
“extraordinary” because applicant may need to off- “clear and convincing ev-
it allows a noncitizen to set those factors by showing idence” when it wished to
avoid the ordinary con- “unusual or even outstanding impose special burdens or
sular visa-issuing pro- equities,” but in cases where reserve relief for exceptional
cess. The memo quotes there are no adverse factors cases. Indeed, INA 245 itself
that adjustment “was not present, adjustment of status contains provisions that re-
designed to supersede will ordinarily be granted, quire “clear and convincing”
the regular consular vi- albeit still as a matter of dis- evidence in specific contexts.
sa-issuing process or to cretion. In other words, Arai If Congress intended adjust-
be granted in non-mer- makes clear that the pres- ment of status in 245(a) to
itorious cases,” and it ence of statutory eligibility be limited to “extraordinary”
points to federal cases and the absence of negatives circumstances, it knew how
like Chen v. Foley for the should normally result in a to say so directly and did not.
proposition that adjust- grant. The memo adopts the Interpreting “may” to mean
ment is not meant to re- “unusual or even outstand- “extraordinary” has no sup-
place consular process- ing equities” language while port in the statutory language
ing. It then extends this omitting Arai’s equally im- of 8 U.S.C. 1255. It is a policy
characterization to cur- portant holding that, when choice layered on top of the
rent practice by stating there are no adverse factors, statute rather than an inter-
that, as a general matter, adjustment should generally pretation compelled by the
nonimmigrants and pa- be approved. statute itself.
m of rolees are expected to This is a significant shift The broader structure of
CYRUS D. MEHTA & PARTNERS PLLC depart once the purpose assuming USCIS intends to section 245 and related provi-
of their admission or pa- implement the new policy. sions confirms that Congress
role is fulfilled and that Historically, although ad- saw adjustment as a central,

seeking AOS instead justment under INA 245(a) normal mechanism for those
“contravenes” Congres- has always been technically already in the United States.

 
   
­ sional expectations. discretionary, USCIS adjudi- Through 245(i), Congress al-
€
‚   Under the memo, cations in employment-based lowed certain individuals who
remaining in the United and family-based cases fo- would otherwise be barred
States and applying to cused on statutory eligi- (for example, for unautho-
adjust status rather than bility, inadmissibility, and rized employment or unlaw-
departing and consular policy-manual guidance on ful presence) to adjust upon
2 6th Floor processing will often be discretion. Eligible appli- payment of a penalty, there-

    treated as an adverse cants in lawful status, par- by expanding access to ad-

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