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November 3, 2026
GWP IMMIGRATION LAW
Eligible Is No Longer the Same as Approved
What adjustment of status discretion means, what USCIS changed in May 2026, and how it affects green card applicants already in the United States.
Adjustment of status discretion is the power USCIS has to deny a green card even when the applicant meets every legal requirement. A May 2026 policy memo tells officers to use that power more strictly.
Updated November 3, 2026 · GWP Law · Las Vegas, NVTHE CONTEXT
What Does Adjustment of Status Discretion Mean?
It means USCIS may approve or deny a green card filed from inside the U.S. based on judgment, after confirming the applicant is eligible.
The rule comes from the statute itself. INA § 245(a) says an eligible applicant’s status “may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe.” 8 U.S.C. § 1255 (INA § 245)
That authority now belongs to the Department of Homeland Security and is exercised by USCIS officers. The word “may” is the key: the law allows approval, but it does not require it.
On May 21, 2026, USCIS issued Policy Memorandum PM-602-0199, whose title begins “Adjustment of Status is a Matter of Discretion and Administrative Grace.” USCIS, PM-602-0199
The memo describes adjustment as “an extraordinary discretionary relief to the regular immigrant visa process,” meaning the green card interview at a U.S. consulate abroad.
The Two Tests Every Green Card Application Must Pass
Every Form I-485 goes through two separate reviews, and passing the first does not guarantee passing the second.
Source: INA § 245(a) and USCIS Policy Manual, Volume 1, Part E, Chapter 8 (Discretionary Analysis).
The Policy Manual instructs officers to “consider the totality of the facts and circumstances of each individual case.” The applicant carries the burden of showing that discretion should be exercised in his or her favor.
That burden has deep roots. In Matter of Blas, the Board of Immigration Appeals held that “the burden is always upon the alien” to show the application merits favorable consideration. Matter of Blas, 15 I&N Dec. 626 (BIA 1974; A.G. 1976)
What Changed With the May 2026 USCIS Memo
The memo did not change who is eligible. It changed how officers are told to weigh the second test.
Source: PM-602-0199 and Matter of Arai, 13 I&N Dec. 494 (BIA 1970).
The memo does not set an effective date or separate pending cases from new filings. Practitioners are treating it as guidance that applies to both.
On October 5, 2026, a coalition of unions, universities, advocacy groups, and individual applicants sued in federal court in Massachusetts to set aside the memo (American Association of University Professors v. Mullin, No. 1:26-cv-14527).
The same lawsuit challenges Policy Alert PA-2026-05, which since August 5, 2026 allows officers to deny a case without first sending a Request for Evidence when initial evidence is missing. USCIS Policy Manual, Volume 1, Part E, Chapter 6 (Evidence)
As of October 20, 2026, the court had not blocked either policy. Both remain in effect.
What the Memo Did Not Change
The memo tightened adjustment of status discretion, but several protections remain in place.
- Eligibility rules. The requirements in INA § 245(a) and its bars in § 245(c) are the same as before.
- The written explanation. A denial must “explain in writing the specific reasons for denial.” 8 CFR § 103.3(a)(1)(i) For discretionary denials, the Policy Manual requires the notice to set out the positive and negative factors and why the negatives outweigh the positives.
- Binding precedent. Board and Attorney General decisions “are binding on all officers and employees of DHS.” 8 CFR § 1003.1(g)(1)
- Family-based protections in precedent. Matter of Cavazos held that, for an immediate relative, preconceived intent alone generally should not defeat adjustment when no other adverse factors appear. Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980)
- Other statutes. The memo addresses adjustment under INA § 245(a). Asylees and refugees adjust under a different provision, INA § 209.
Who Feels Adjustment of Status Discretion Most in 2026
GWP analysis based on PM-602-0199 and INA § 245(c).
A REAL CASE
A Spouse Who Had Everything on Paper
A woman called me in June, two weeks after the memo came out. She had entered on a tourist visa, married her U.S. citizen husband eight months later, and had an I-485 pending.
Her eligibility was clear. Her file, though, contained only the forms, the marriage certificate, and a joint lease.
I explained that under the new memo a complete file and a clean record were not the same as a favorable exercise of discretion. Before the interview, we filed a supplemental packet.
It included her husband’s medical records showing she managed his treatment, IRS transcripts, letters from his physician and employer, and a declaration explaining the timeline of the relationship.
The officer asked about her intent at entry and reviewed the packet. The case was approved.
Every case is different, and past results do not guarantee a similar outcome.
What to Do Now If You Plan to Adjust Status
THE PATH FORWARD
Build the Discretionary Case, Not Just the Eligibility Case
Adjustment of status discretion has always existed, but in 2026 USCIS expects applicants to prove why they deserve a green card, not only that they qualify for one.
If you are weighing whether to file inside the U.S. at all, compare both routes in our guide to adjustment of status vs. consular processing.
Our related guides cover whether a green card can be denied even if you are eligible, the positive factors for adjustment of status, and the adverse factors in adjustment of status that most often lead to denial.
References
- 8 U.S.C. § 1255 (INA § 245), Adjustment of status
- USCIS, Policy Memorandum PM-602-0199 (May 21, 2026)
- USCIS Policy Manual, Volume 1, Part E, Chapter 8, Discretionary Analysis
- USCIS Policy Manual, Volume 1, Part E, Chapter 6, Evidence
- Matter of Blas, 15 I&N Dec. 626 (BIA 1974; A.G. 1976)
- Matter of Arai, 13 I&N Dec. 494 (BIA 1970)
- Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980)
- 8 CFR § 103.3, Denials and appeals
- 8 CFR § 1003.1, Board of Immigration Appeals
Filing for a green card inside the U.S. under the new discretion standard?
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Book a Consultation →This article is for informational purposes only and does not constitute legal advice. Consult a qualified immigration attorney before taking any action. · Last verified: October 20, 2026 · Reviewed by: Kathia Quirós, Immigration Attorney · GWP Immigration Law
