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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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