PM-602-0199 Explained: What USCIS's Discretion Memo Means for H-1B Green Card Filers

USCIS's May 2026 memo calls adjustment of status extraordinary relief, so here is what it tells officers to weigh on an H-1B, L-1 or O-1 worker's I-485, and what it leaves out.

Part of our guide to Form I-485.

The PM-602-0199 adjustment of status memo, dated May 21, 2026, tells USCIS officers that adjustment of status, the green card process you finish inside the US on Form I-485, is "a matter of discretion and administrative grace" and an "extraordinary" relief that lets you skip the ordinary consular visa process. As of November 1, 2026 it is in effect and challenged in AAUP v. Mullin, with no ruling. For H-1B, L-1 and O-1 workers it does not end adjustment of status. It acknowledges dual intent categories as an exception, but says dual intent status alone is "not sufficient." Officers still weigh positive and negative factors case by case.

Status line, as of 2026-11-01. In effect, challenged: PM-602-0199 (since 2026-05-21) and Policy Alert PA-2026-05 (since 2026-08-05; denial without an RFE or NOID when required initial evidence is missing), both in AAUP v. Mullin (D. Mass. No. 1:26-cv-14527, filed 2026-10-05), with no ruling and no preliminary injunction. Also in effect, challenged: the public charge final rule (no preliminary injunction; the states' summary-judgment motion in State of New York v. DHS is due 2026-12-11). Not published: USCIS decision data from July 2026 on.

What the PM-602-0199 adjustment of status memo says

PM-602-0199 says adjustment of status under INA 245 is discretionary, extraordinary relief "not designed to supersede the regular consular processing of immigrant visas." It adds no eligibility bar. It tells officers to weigh all positive and negative factors, acknowledges "nonimmigrant categories with dual intent" as an exception, and requires every discretionary denial notice to include "an explanation of why the negative factors outweigh the positive factors."

USCIS frames the memo as a reminder that "reaffirms this consistent and longstanding approach," citing decisions back to Matter of Blas (1974). According to BAL's summary of the lawsuit, the complaint calls the policy "unprecedented," and BAL reads the memo as making the choice to adjust rather than consular process "a negative discretionary factor that may result in denial" absent "unusual or even outstanding" countervailing considerations. Both readings start from these sentences in the memo on uscis.gov:

• The guidance itself: "Where consular processing is available to an alien based on the immigrant category in which he or she seeks adjustment of status," officers are to consider the courts' and the BIA's understanding that "adjustment of status is an extraordinary discretionary relief to the regular immigrant visa process and is an act of administrative grace."
• Dual intent: "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 higher bar: for nonimmigrants and parolees whom Congress expects to depart, their "attempt to avoid the ordinary consular immigrant visa process, usually accompanied by their violation of our immigration laws," is an adverse factor they may need "to offset...by a showing of unusual or even outstanding equities." Then: "The absence of adverse factors, by itself, does not demonstrate such unusual or outstanding equities."

What the memo says, and what it does not (as of 2026-11)

Does PM-602-0199 apply to employment-based green cards?

Yes. Employment-based I-485s are filed under INA 245(a), the discretionary provision the memo is about, and employment-based categories can also be processed at a consulate, the condition its guidance paragraph turns on. The memo names no category, so it neither singles out H-1B workers nor exempts them.

Footnote 24 sets aside a few programs where USCIS "must approve" an eligible applicant; none is employment-based. The memo also quotes INA 245(c), whose bars include anyone seeking an employment-based green card who "is not in a lawful nonimmigrant status," and its cross-reference to 245(k), without discussing it. Under 8 U.S.C. 1255(k), EB-1, EB-2, EB-3 and EB-5 applicants (and certain religious workers) present on a lawful admission escape the 245(c)(2), (c)(7) and (c)(8) bars if their status lapses, unauthorized work and other violations after that admission total no more than 180 days. Our reading: 245(k) answers whether you are eligible; the memo is about discretion, and its negative factors include "violations of our immigration laws or the conditions of any immigration status held" with no carve-out for violations 245(k) forgives. Ask your attorney how a forgiven gap is weighed; our guide to counting the 180 days under 245(k) shows how the count works.

Does dual intent protect H-1B holders under the memo?

Partly. Dual intent means seeking a green card does not by itself undermine your H-1B, L-1 or O-1 status, and the memo accepts that. But it also says dual intent status alone does not earn a favorable exercise of discretion; it is one fact among several.

For H-1B and L-1, 8 U.S.C. 1184(h) (INA 214(h)) says being the beneficiary of a preference petition "shall not constitute evidence of an intention to abandon a foreign residence." For O-1, 8 CFR 214.2(o)(13) says the worker may "lawfully seek to become a permanent resident of the United States." The memo does not list which categories it counts. TN and F-1 are not dual intent; our dual intent comparison covers each.

The memo's core argument is that seeking adjustment instead of leaving "contravenes these Congressional expectations, though USCIS acknowledges exceptions including nonimmigrant categories with dual intent." Footnote 18 describes the applicants it worries about as people who "usually fail to maintain their nonimmigrant or parole status while their adjustment of status applications are pending." Our reading: an H-1B or L-1 worker who keeps that status while the I-485 is pending fits the dual intent sentence, but the memo does not say how much weight that carries. Whether to keep H-1B status or rely on a (c)(9) EAD is a decision for your employer's attorney; (c)(9) renewals filed on or after 2025-10-30 get no automatic extension.

What counts as a negative discretionary factor?

Summarizing existing guidance, the memo lists status or immigration-law violations, fraud or false testimony, an admission or parole that broke the rules in place at the time, and conduct inconsistent with your status or with what you told consular or DHS officers; failure to depart as expected is "highly relevant." Officers weigh these against "family ties, immigration status and history, the applicant's moral character, and any other relevant factor."

The memo points officers to the Policy Manual, whose factor table is the most concrete list available:

Discretionary factors for adjustment of status, as of 2026-11 (USCIS Policy Manual, Vol. 7, Part A, Ch. 10)

Source: Policy Manual, Vol. 7, Part A, Chapter 10, read 2026-11-01 (it does not mention PM-602-0199). The general discretionary analysis chapter says the requestor "has the burden of showing that a favorable exercise of discretion is warranted."

Notice the last row. The Policy Manual counts a clean record as a positive; the memo says the absence of adverse factors "by itself" does not show the "unusual or even outstanding equities" it describes for nonimmigrants and parolees expected to depart. It does not say whether that higher bar reaches dual intent workers who kept their status.

Common misconception: "After PM-602-0199, USCIS approves adjustment of status only in exceptional cases."

Correction, as of 2026-11-01: The memo sets no quota, adds no eligibility bar, calls for review "in the totality of the circumstances," and requires a written weighing of factors in every discretionary denial. Its "extraordinary" label comes from BIA and court decisions and, in the memo's words, reflects that adjustment lets an applicant "avoid the prescribed, ordinary consular visa process." What it does do: keep the burden on you, describe approval for nonimmigrants and parolees expected to depart as "extraordinary," and name dual intent as an exception without saying how much that helps. USCIS's FY2026 Q3 I-485 spreadsheet (April to June 2026) counts 42,076 employment-based approvals and 3,160 denials, but more than half of that quarter predates the memo, so it cannot show the memo's effect; no later quarter was posted as of 2026-11-01.

Will USCIS push more cases to consular processing?

The memo orders no one to leave the US, and no published USCIS data yet covers decisions after June 2026, so data cannot show whether a shift has begun. The memo tells officers to treat adjustment as extraordinary wherever consular processing is available, and says USCIS may later issue guidance for specific categories; that is the sentence to watch. Consular processing is not a simple swap:

• Different chart. Consular cases always use the Final Action Dates. In the November 2026 bulletin, EB-2 for the rest of the world has a Final Action Date of 2025-04-01 and a Dates for Filing cutoff of 2026-03-15, and USCIS requires the Dates for Filing chart for November I-485s. A priority date between those two dates can support an I-485 filing this month but not an immigrant visa abroad.
• Travel restrictions. Proclamation 10998, in effect since 2026-01-01, restricts immigrant visas for nationals of the 39 countries it covers, subject to its exceptions (State Department).
• Litigation abroad too. A 75-country immigrant-visa pause was vacated by a federal court on 2026-08-21 (CLINIC v. Rubio) and is on appeal; according to the Maki Law Firm's tracker, a 2026-10-19 order paused only the re-review of past refusals, and the policy stays blocked.

Our comparison of consular processing vs adjustment of status for employment green cards walks through the trade-offs; the choice belongs with your employer's attorney, not a forum.

Is the adjustment of status memo being challenged in court?

Yes. AAUP v. Mullin, filed 2026-10-05 in the District of Massachusetts (No. 1:26-cv-14527), challenges PM-602-0199 and PA-2026-05. As of 2026-11-01 there is no ruling and no preliminary injunction, so both policies apply to pending and new cases.

According to BAL, the plaintiffs include the American Association of University Professors, several SEIU affiliates, Americans for Immigrant Justice and individual adjustment applicants. They claim the policies are contrary to law, skipped notice and comment, are arbitrary and capricious, violate the Accardi doctrine that an agency must follow its own rules, and violate due process, and they ask the court to set both aside. These are allegations, not findings. We make no prediction; our explainer on the AAUP v. Mullin lawsuit tracks the case. Separately, the memo asserts that USCIS's adjustment findings are an unreviewable "decision or action" under INA 242(a)(2)(B), its position on court review of individual decisions.

How PM-602-0199 and PA-2026-05 work together on one I-485

PA-2026-05 lets officers deny without an RFE or NOID when required initial evidence is missing, makes 12 weeks the RFE maximum, caps NOIDs at 30 days and drops the extra 14 days for mail abroad. It covers every benefit request pending or filed on or after 2026-08-05, including I-485s.

PA-2026-05 governs a file missing required evidence; PM-602-0199 governs how an officer weighs an otherwise eligible case. Our reading: together they make the file as submitted the record that gets weighed, with no guaranteed chance to fill gaps. If a denial arrives, read its factor analysis with your attorney; our guide to why I-485s get denied and what to do next covers motions, refiling and status consequences.

A worked timeline: one H-1B worker filing in November 2026

Take a hypothetical worker, Ana, born in Brazil, on H-1B since 2022 after a US master's degree. She was laid off in 2024 and moved to a new employer on a new H-1B petition; that employer later filed her EB-2 PERM case, and her I-140 is approved with a priority date of 2025-09-10.

Dates that shape Ana's I-485 (as of 2026-11)

Ana's H-1B history, stable employment, US degree and tax filings are the kinds of facts the Policy Manual lists as positives. Her 2024 layoff touches "immigration status and history" and employment history, rows with two sides, so her attorney will want the dates of each petition and gap documented. The USCIS processing-times tool showed 42.5 months (SCOPS) and 9.5 months (field offices) for 80% of employment-based I-485s on 2026-11-01, so the policies in force when her case is decided may differ from today's.

What to do before you file, step by step

1. Download every I-94 from the CBP I-94 website and gather every I-797 approval notice, so your status history sits on one timeline.
2. Check the USCIS Adjustment of Status Filing Charts page for the chart USCIS requires this month (Dates for Filing for November 2026).
3. Confirm the I-485 edition (09/18/26 only) and the current address on the USCIS I-485 page; old addresses work only if postmarked on or before 2026-11-09.
4. Ask your employer's immigration attorney to review the initial-evidence list against PA-2026-05 before filing; our employment-based I-485 initial evidence checklist shows what that list usually covers.
5. Raise any status gap, unauthorized work or past misstatement with the attorney in writing, including whether 245(k) is relevant.
6. Watch the USCIS Policy Manual updates page for category-specific guidance, and the AAUP v. Mullin docket for a ruling.

For other October changes, including the public charge final rule and the new I-485 edition, see our roundup of new green card rules in October 2026.

Common mistakes

• Assuming dual intent status alone carries the case. Footnote 20 says it is "not sufficient, on its own."
• Treating a clean record as the whole argument. The memo says the absence of adverse factors "by itself" does not show unusual equities for applicants it views as avoiding consular processing.
• Assuming the lawsuit paused the memo. As of 2026-11-01 there is no ruling and no injunction.
• Counting on an RFE to fix a gap. PA-2026-05 allows denial without one when initial evidence is missing.
• Assuming 245(k) settles discretion. It restores eligibility for limited violations; the memo still lists violations as a factor.
• Acting on forum claims of a "denial spike" or a push abroad. No published USCIS data covers decisions after June 2026, and consular cases face Final Action Dates and travel restrictions.

Frequently asked questions

Does PM-602-0199 apply to employment-based green cards?

Yes. It covers discretionary adjustment under INA 245, including the 245(a) route most employment-based I-485 filers use, and names no visa class or category. Only adjustment programs that are non-discretionary by statute fall outside it. As of 2026-11-01 it is in effect and challenged, with no ruling.

Is the adjustment of status memo being challenged in court?

Yes. AAUP v. Mullin (D. Mass. No. 1:26-cv-14527), filed 2026-10-05, challenges PM-602-0199 and PA-2026-05 under the Administrative Procedure Act and the Due Process Clause. As of 2026-11-01 there is no ruling and no preliminary injunction, so both policies remain in effect.

Does dual intent protect H-1B holders under the memo?

Only partly. The memo treats dual intent categories, which include H-1B and L-1 by statute, as an exception and says applying to adjust is not inconsistent with keeping that status. But footnote 20 says maintaining lawful dual intent status is "not sufficient, on its own, to warrant a favorable exercise of discretion," so officers still weigh the whole record.

Will USCIS push more cases to consular processing?

The memo does not order anyone to leave the US and consular process, and as of 2026-11-01 USCIS had published no decision data from after June 2026, so its effect cannot be measured yet. It tells officers to treat adjustment as extraordinary relief where consular processing is available and says USCIS may issue category-specific guidance later. The adjust-or-consular choice belongs with your employer's immigration attorney.

What counts as a negative discretionary factor?

The memo names immigration-law or status violations, current or past fraud or false testimony, an admission that broke the rules in place at the time, conduct inconsistent with your status or with what you told consular or DHS officers, and failure to depart as expected. The Policy Manual adds items such as unauthorized employment and unpaid taxes. Officers weigh them against positive factors case by case.

Sources

• USCIS, PM-602-0199, Adjustment of Status is a Matter of Discretion and Administrative Grace (2026-05-21)
• USCIS, PA-2026-05, evidentiary standards (2026-08-05)
• USCIS Policy Manual, Vol. 7, Part A, Ch. 10 and Vol. 1, Part E, Ch. 8; Policy Manual updates
• USCIS, Adjustment of Status Filing Charts from the Visa Bulletin and Form I-485
• USCIS, I-485 performance data, FY2026 Q3; Immigration and Citizenship Data; processing times
• BAL, Lawsuit challenges adjustment of status policies (2026-10-07)
• CourtListener, State of New York v. DHS (public charge)
• Cornell LII, 8 U.S.C. 1255, 8 U.S.C. 1184, 8 CFR 214.2
• State Department, Proclamation 10998 announcement
• Maki Law Firm, CLINIC v. Rubio case tracker (status as of 2026-10-24)

How we checked this: we read PM-602-0199 and PA-2026-05 in full on uscis.gov, the Policy Manual chapters the memo cites, the Policy Manual updates page back to 2026-05-21, the statute and regulations above, USCIS's FY2026 Q3 I-485 spreadsheet, and BAL's summary of the complaint, all on 2026-11-01.

This is general information, not legal or tax advice; your own notices and I-94 govern, and decisions about your I-485 belong with a licensed immigration attorney.

If you are building toward an H-1B, L-1 or O-1 role with an employer that sponsors green cards, F1Jobs can help you run a focused search for those employers.