The Lawsuit Against USCIS's Green Card 'Discretion' Memo and No-RFE Policy: AAUP v. Mullin Explained
A new federal lawsuit says USCIS unlawfully recast green cards as extraordinary grace and dropped the RFE safety net, but until a judge rules, both policies apply to your I-485.
Part of our guide to Form I-485.
Status as of 2026-11-01. The adjustment of status discretion lawsuit, AAUP v. Mullin (US District Court for the District of Massachusetts, No. 1:26-cv-14527, filed 2026-10-05), is pending, with no ruling and no preliminary injunction. Both policies it targets are in effect, challenged: USCIS memo PM-602-0199 (2026-05-21), which calls adjustment of status "a matter of discretion and administrative grace" and an "extraordinary" relief, and Policy Alert PA-2026-05 (in effect since 2026-08-05), which lets officers deny any benefit request without a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) when required initial evidence is missing. If your I-485 is pending or planned, both apply to you today. This page does not predict the outcome.
What is the adjustment of status discretion lawsuit?
AAUP v. Mullin is a federal lawsuit filed on 2026-10-05 in Massachusetts by the American Association of University Professors, Service Employees International Union affiliates, Americans for Immigrant Justice and individual green card applicants. It asks the court to set aside USCIS's May 2026 discretion memo and its August 2026 no-RFE policy. As of 2026-11-01, neither has been blocked.
"Mullin" is DHS Secretary Markwayne Mullin; some alerts style the case AAUP v. DHS. According to BAL's summary of the complaint (2026-10-07), the plaintiffs say the policies "are contrary to law and in excess of statutory authority" and ask the court to set both aside and order USCIS to follow prior agency precedent. Fragomen's 2026-10-05 alert says they also seek a preliminary injunction. These are allegations and requests, not findings.
What each claim generally tests
BAL lists five legal theories. Here is what each kind of claim generally asks a court (not a prediction):
| Claim (as reported 2026-10-07) | What this kind of claim generally tests |
|---|---|
| APA: contrary to law, in excess of statutory authority | Whether the agency went beyond what the statute, here INA 245, allows |
| APA: notice and comment | Whether the agency issued a binding rule without Federal Register notice-and-comment rulemaking |
| APA: arbitrary and capricious | Whether the agency explained its change and considered the relevant factors |
| Accardi doctrine | Whether the agency departed from its own binding rules and precedents |
| Due Process Clause | Whether the procedure, such as a denial with no chance to respond, is fair |
What is USCIS memo PM-602-0199?
PM-602-0199 is a six-page USCIS policy memorandum dated 2026-05-21. It "reminds officers and the public" that adjustment "is a matter of discretion and administrative grace not designed to supersede the regular consular processing of immigrant visas" (USCIS, PM-602-0199). It is guidance, not a regulation: its "Use" section says it is "intended solely for the guidance of USCIS personnel," and it points officers to the existing discretion chapter in Policy Manual Volume 7, Part A, Chapter 10.
Is adjustment of status now "extraordinary relief"?
That is the label USCIS now tells officers to apply, drawn from decades of case law, led by Matter of Blas (BIA 1974; Attorney General 1976). The statute did not change: INA 245(a) has always said status "may be adjusted ... in his discretion." What the memo adds is direction on how heavily to weigh that discretion:
- "Generally, when a nonimmigrant ... fails to depart as required and instead seeks adjustment of status, it contravenes these Congressional expectations," though USCIS "acknowledges exceptions including nonimmigrant categories with dual intent."
- That contravention and the attempt "to avoid the ordinary consular immigrant visa process" are "adverse factors" an applicant may need "to offset...by a showing of unusual or even outstanding equities." And "the absence of adverse factors, by itself, does not demonstrate such unusual or outstanding equities."
- Where consular processing is available for the applicant's immigrant category, officers are to consider that adjustment is "an extraordinary discretionary relief."
- Officers weigh the totality of the circumstances, including status violations, fraud, and conduct inconsistent with your status or "with representations made to consular or DHS officers."
Our reading: employment-based immigrants can generally use consular processing, and the memo carves out no employment category, so it reaches EB-2 and EB-3 I-485s. It does not say how the dual intent exception interacts with the consular-processing factor for an H-1B applicant; ask your attorney. Our consular processing vs adjustment of status comparison covers that choice. The memo says USCIS "may provide policy guidance specific to certain adjustment of status categories"; the Policy Manual updates page listed none through 2026-11-01.
Does dual intent protect H-1B applicants under the memo?
Only partly. The memo says: "USCIS reminds its officers that applying for adjustment of status is not inconsistent with simultaneously maintaining nonimmigrant status in a category with dual intent." Footnote 20 adds: "However, maintaining lawful status in a dual intent nonimmigrant category is not sufficient, on its own, to warrant a favorable exercise of discretion."
The memo names no visa class, but H-1B and L-1 are the familiar dual intent categories; our dual intent comparison covers how O-1, TN and F-1 differ. So filing for a green card while on H-1B is not in itself a status problem, yet valid status alone does not earn approval. Footnote 18 says such applicants "usually fail to maintain their nonimmigrant or parole status" while adjustment is pending, so an unbroken H-1B or L-1 record matters (our reading). Your whole record is weighed, including any unauthorized work and what you told consular and CBP officers on earlier entries.
What is PA-2026-05, and why is it in the same lawsuit?
PA-2026-05 is a USCIS Policy Alert dated 2026-08-05 that rewrote the Policy Manual's guidance on evidence, RFEs and NOIDs for every benefit request, including I-485s, I-140s and OPT I-765s. It aims "to restore USCIS officers' full discretion to deny such benefit requests without first issuing an RFE or NOID, as allowed by the regulations" (USCIS, PA-2026-05), and applies to requests "pending or filed on or after" 2026-08-05. Our PA-2026-05 explainer covers its effect on EB-1A and NIW petitions.
For an I-485, the two policies interact. Our reading: the memo raises the bar a complete record must clear, and the alert reduces the chance to fix an incomplete one after filing.
Old rule vs new rule: what changed for I-485 applicants (as of 2026-11)
| Issue | Before | Now (in effect, challenged) | What to do differently |
|---|---|---|---|
| How officers frame discretion | Case by case under Policy Manual Vol. 7, Part A, Ch. 10 (USCIS calls the memo a reaffirmation) | "Extraordinary" relief where consular processing is available; failing to depart and avoiding consular processing are adverse factors; a clean record alone does not show "unusual or even outstanding equities" (PM-602-0199) | Ask your attorney how your full history reads under the memo before you file |
| Dual intent (H-1B, L-1) | Seeking a green card is not inconsistent with status | Still not inconsistent, but "not sufficient, on its own" | Keep your nonimmigrant status valid and documented throughout |
| Missing initial evidence | Officers were instructed to issue an RFE or NOID | May deny outright, or issue an RFE (PA-2026-05) | File a complete package against the current instructions |
| RFE and NOID deadlines | The full 12-week RFE period was generally given; +14 days if mailed abroad | RFE up to 12 weeks (a ceiling); NOID up to 30 days; +3 days for any notice served by mail | Use the deadline on your own notice; it controls |
| Partial response | The alert presents this as a clarification | Any requested evidence received counts as a request for a decision | Answer every item, or get advice on gaps first |
| Discretionary denial notice | Written reasons required (8 CFR 103.3(a)(1)(i)) | Notice must also set out the positive and negative factors and why the negatives outweigh the positives (PM-602-0199) | Read the analysis closely with your attorney |
Are PM-602-0199 and PA-2026-05 still in effect?
Yes. Both are in effect and challenged as of 2026-11-01. A lawsuit pauses nothing by being filed; only a court order, or USCIS withdrawing a policy, would. As of 2026-11-01 no ruling, injunction or hearing date had been reported in AAUP v. Mullin.
Related items to track if you are on H-1B or L-1 in the green card line (status as of 2026-11-01):
| Item | Status | Key date |
|---|---|---|
| PM-602-0199 and PA-2026-05 | In effect, challenged | Memo 2026-05-21; alert since 2026-08-05 |
| AAUP v. Mullin (D. Mass. 1:26-cv-14527) | Pending | Filed 2026-10-05; no ruling or PI |
| Form I-485 edition | Only the 09/18/26 edition accepted | No grace period |
| Old I-485 filing addresses | Grace ends | Accepted only if postmarked on or before 2026-11-09 |
| November 2026 Visa Bulletin | Published; USCIS requires the Dates for Filing chart for I-485s | December bulletin expected mid-November |
Filing rows: the USCIS Form I-485, filing locations and adjustment filing charts pages.
What can an APA lawsuit do, and what can't it?
An Administrative Procedure Act suit attacks an agency policy, not one person's case. If plaintiffs win, a court may "hold unlawful and set aside agency action" (5 U.S.C. 706). Before judgment, 5 U.S.C. 705 lets a court "postpone the effective date of an agency action," and courts can also grant preliminary injunctions. Other 2026 immigration cases show the range, without predicting this one:
- Broad relief before judgment. In the same district, Presidents' Alliance v. DHS has kept the F-1 duration-of-status rule blocked nationwide since 2026-09-14 through a section 705 postponement plus a preliminary injunction.
- Narrow relief. In the EAD auto-extension case Jane Doe 1 v. DHS, the preliminary injunction covers seven H-4 plaintiffs only.
- Relief, then appeal. In California v. Mullin, the court vacated the agency policies implementing the $100,000 H-1B fee; the case is on appeal and the fee is not being collected.
What a suit like this cannot do:
- Approve your green card. Even if both policies were set aside, discretion under INA 245(a) would remain.
- Run on a known schedule. No hearing date had been reported as of 2026-11-01.
- Serve as your individual appeal. The memo asserts that USCIS findings in adjustment cases are an unreviewable "decision or action" under INA 242(a)(2)(B). How that applies to any one case is a question for your attorney.
Whether a ruling would reach decisions already issued is for a court to decide; nothing has been decided.
A worked timeline: an H-1B worker filing in November 2026 (hypothetical)
Say you are on H-1B, born in India, with an approved EB-2 I-140 and a priority date of 2014-08-15.
- 2026-05-21 to 2026-10-05: PM-602-0199 issues, PA-2026-05 takes effect on 2026-08-05 for every pending and new filing, and AAUP v. Mullin is filed. The lawsuit changes nothing in this case.
- 2026-10-22: The November Visa Bulletin keeps the EB-2 India Final Action Date at 2013-11-01, but USCIS requires the Dates for Filing chart (2015-01-15) for November I-485s. A 2014-08-15 priority date is earlier, so it is current for filing under that chart.
- Early November 2026: The I-485 goes in on the 09/18/26 edition at the current address. The G-1055 fee is $1,440 on paper or $1,390 online for applicants 14 and older.
- After filing: If a required initial document is missing, PA-2026-05 allows a denial without an RFE. When discretion is weighed, PM-602-0199 applies.
- The wait: USCIS cannot approve this I-485 until the EB-2 India Final Action Date reaches 2014-08-15; it is 2013-11-01 in November, and every December figure is a forecast. On 2026-11-01 the USCIS processing times tool showed 42.5 months (Service Center Operations) and 9.5 months (field offices) for employment-based I-485s (80% of cases completed within). A ruling could come at any point in that wait.
The full PERM, I-140 and I-485 sequence is in our guide to getting a green card while on H-1B.
What to do now if your I-485 is pending or planned
- Find your Form I-797C receipt notice for the I-485. If the case was pending on or filed after 2026-08-05, PA-2026-05 applies.
- Calendar any RFE or NOID deadline exactly as printed on the notice, and check your USCIS online account.
- Compare a planned package against the current Form I-485 instructions and our employment-based I-485 initial evidence checklist, since missing initial evidence can now mean a denial.
- Keep your H-1B or L-1 status valid while the I-485 is pending. Your employer files any I-129 extension; from 2026-11-09 USCIS accepts only the 09/09/26 edition.
- Ask your employer's immigration attorney, or your own, to review your status history, any unauthorized work and prior visa and entry statements in light of PM-602-0199.
- Read any denial with your attorney. Our guide to why I-485s get denied and what to do next covers the options, including a Form I-290B motion (see the USCIS Notice of Appeal or Motion page).
- Watch the D. Mass. docket for 1:26-cv-14527 and the USCIS Policy Manual updates page.
On F-1, OPT or STEM OPT with a green card years away? Your DSO handles SEVIS and OPT questions; adjustment and discretion questions belong with a licensed immigration attorney.
What the numbers can and cannot tell you
USCIS's employment-based I-485 inventory, linked from its immigration and citizenship data page, showed 225,196 pending applications as of 2026-10-05 (published cells only, so a floor). Its separate FY2026 Q3 I-485 report (April to June 2026) showed 42,076 employment-based approvals and 3,160 denials, about 93% approved by our arithmetic (approvals divided by approvals plus denials). The two reports count pending cases differently, so do not compare them.
That quarter ended before PA-2026-05 took effect and includes only about six weeks after the memo's date, so it cannot measure either policy. As of 2026-11-01 USCIS had posted no I-485 approval or denial data for July 2026 onward. Any claim that the memo "caused" a denial wave has no support in official data.
Common mistakes
- Treating the lawsuit as a pause. Filing a complaint blocks nothing; until a court order issues, both policies apply.
- Confusing AAUP v. Mullin with AAU v. DHS. The second case (D. Mass. 1:26-cv-14520), brought by the Association of American Universities, challenges SEVP's CPT broadcasts and has a preliminary-injunction hearing on 2026-11-06 at 3:00 p.m. (check the docket for the outcome after that date). It does not involve the I-485 policies.
- Saying the memo bans adjustment or requires consular processing. It does neither; it tells officers how to frame discretion.
- Counting on an RFE. Missing initial evidence can lead straight to a denial, and 12 weeks is a ceiling, not a promise.
- Thinking PA-2026-05 covers only EB-1A and NIW. It covers every USCIS benefit request, including your I-485, I-765 and I-131.
Frequently asked questions
What is USCIS memo PM-602-0199?
PM-602-0199 is a USCIS policy memorandum dated 2026-05-21 that reminds officers adjustment of status is a matter of discretion and administrative grace, and an extraordinary relief that lets applicants dispense with ordinary consular visa processing. It is internal guidance that does not amend the statute or the regulations, and it names no specific visa class. As of 2026-11-01 it is in effect and challenged in AAUP v. Mullin, with no ruling.
Is adjustment of status now extraordinary relief?
That is how USCIS now tells its officers to view it where consular processing is available for the applicant's immigrant category. PM-602-0199, dated 2026-05-21, cites decades of Board of Immigration Appeals and court decisions calling adjustment extraordinary relief, and says the absence of adverse factors does not by itself show the unusual or outstanding equities an applicant may need. INA 245(a) has always made adjustment discretionary; the memo changes the emphasis officers are told to apply, not the statute.
What does AAUP v. Mullin challenge?
AAUP v. Mullin, filed 2026-10-05 in the US District Court for the District of Massachusetts (No. 1:26-cv-14527), challenges two USCIS policies under the Administrative Procedure Act and the Due Process Clause. They are the 2026-05-21 discretion memo PM-602-0199 and Policy Alert PA-2026-05, which since 2026-08-05 lets officers deny a request without an RFE or NOID when required initial evidence is missing. As of 2026-11-01 there is no ruling and no preliminary injunction.
Are PM-602-0199 and PA-2026-05 still in effect?
Yes. As of 2026-11-01 both policies are in effect and challenged. Filing a lawsuit does not pause a policy. Only a court order, such as a preliminary injunction, a section 705 postponement or a final judgment setting a policy aside, or USCIS withdrawing the policy would do that, and no such order has been issued in AAUP v. Mullin. Check the court docket and the USCIS Policy Manual updates page for changes after that date.
Does dual intent protect H-1B applicants under the memo?
Only partly. PM-602-0199 says applying to adjust is not inconsistent with maintaining status in a dual intent category, but a footnote adds that maintaining that status is not sufficient, on its own, to warrant a favorable exercise of discretion. The memo names no visa class; H-1B and L-1 are the familiar dual intent examples. Dual intent answers whether seeking a green card conflicts with your visa, not whether an officer will grant the green card.
Sources
- USCIS, PM-602-0199: Adjustment of Status is a Matter of Discretion and Administrative Grace (2026-05-21)
- USCIS, PA-2026-05: Evidence, Requests for Evidence, and Notices of Intent to Deny (2026-08-05)
- USCIS Policy Manual, Volume 7, Part A, Chapter 10: Legal Analysis and Use of Discretion
- USCIS Policy Manual updates
- USCIS, Form I-485 and filing locations updates
- USCIS, Immigration and citizenship data
- USCIS, Adjustment of status filing charts from the Visa Bulletin
- BAL, Lawsuit challenges adjustment of status policies (2026-10-07)
- Fragomen, Lawsuit seeks to enjoin recent USCIS policies affecting adjustment of status applicants (2026-10-05)
- 5 U.S.C. 705, 5 U.S.C. 706 and 8 U.S.C. 1255 (INA 245), via Cornell LII
How we checked this: on 2026-11-01 we read the full text of PM-602-0199 and PA-2026-05 on uscis.gov, the USCIS Form I-485, filing-location, chart and Policy Manual updates pages, the statute text on Cornell LII, and BAL's and Fragomen's summaries of the complaint, and took processing-time and data figures as USCIS published them on that date. We could not open the complaint itself or a public docket, so case details are as those firms report them.
This is general information, not legal or tax advice; your own notices, I-94 and receipt govern, and a licensed immigration attorney should assess your case.
If you are on H-1B, L-1 or STEM OPT and want to focus your search on employers that sponsor green cards, F1Jobs can help you build that list while your attorney handles the filings.
Frequently asked questions
What is USCIS memo PM-602-0199?
PM-602-0199 is a USCIS policy memorandum dated 2026-05-21 that reminds officers adjustment of status is a matter of discretion and administrative grace, and an extraordinary relief that lets applicants dispense with ordinary consular visa processing. It is internal guidance that does not amend the statute or the regulations, and it names no specific visa class. As of 2026-11-01 it is in effect and challenged in AAUP v. Mullin, with no ruling.
Is adjustment of status now extraordinary relief?
That is how USCIS now tells its officers to view it where consular processing is available for the applicant's immigrant category. PM-602-0199, dated 2026-05-21, cites decades of Board of Immigration Appeals and court decisions calling adjustment extraordinary relief, and says the absence of adverse factors does not by itself show the unusual or outstanding equities an applicant may need. INA 245(a) has always made adjustment discretionary; the memo changes the emphasis officers are told to apply, not the statute.
What does AAUP v. Mullin challenge?
AAUP v. Mullin, filed 2026-10-05 in the US District Court for the District of Massachusetts (No. 1:26-cv-14527), challenges two USCIS policies under the Administrative Procedure Act and the Due Process Clause. They are the 2026-05-21 discretion memo PM-602-0199 and Policy Alert PA-2026-05, which since 2026-08-05 lets officers deny a request without an RFE or NOID when required initial evidence is missing. As of 2026-11-01 there is no ruling and no preliminary injunction.
Are PM-602-0199 and PA-2026-05 still in effect?
Yes. As of 2026-11-01 both policies are in effect and challenged. Filing a lawsuit does not pause a policy. Only a court order, such as a preliminary injunction, a section 705 postponement or a final judgment setting a policy aside, or USCIS withdrawing the policy would do that, and no such order has been issued in AAUP v. Mullin. Check the court docket and the USCIS Policy Manual updates page for changes after that date.
Does dual intent protect H-1B applicants under the memo?
Only partly. PM-602-0199 says applying to adjust is not inconsistent with maintaining status in a dual intent category, but a footnote adds that maintaining that status is not sufficient, on its own, to warrant a favorable exercise of discretion. The memo names no visa class; H-1B and L-1 are the familiar dual intent examples. Dual intent answers whether seeking a green card conflicts with your visa, not whether an officer will grant the green card.