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PerplexityWithin a week after the implementation of the USCIS discretion memo (PM-602-0199), a USCIS representative provided the media with a sentence more relevant for I-485 discretion EB-1A exposure than any other sentence about the adjustment of status policy change. Applicants who “provide an economic benefit or otherwise are in the national interest will likely be able to continue on their current path,” the agency added, “while others may be asked to apply abroad depending on individualized circumstances.”
Four months later, that sentence is the only sorting criterion that exists outside of USCIS. The sentence also is not found anywhere in the memo, and there is no definition of either one of the terms, which is why it has been used cautiously. It has also been rarely mentioned in the media at all.
Scope of the discussion first, as most pieces miss the scope. Policy Memorandum PM-602-0199 regulates adjustment of status, the I-485 phase. It does not affect I-140 extraordinary ability standard, the Kazarian two-step procedure, or the merits decision.
Read More: USCIS AOS Policy 2026: What the Discretion Memo Really Means
What Changed: Adjustment of Status Discretion Factors
PM-602-0199 was issued by USCIS on May 21, 2026 with an eye-catching title – “Adjustment of Status is a Matter of Discretion and Administrative Grace, and an Extraordinary Relief that Allows the Applicants to Do Away with the Ordinary Consular Visa Process”. This document states that the lack of any adverse factors in a case should not be considered sufficient reason for approval.
These two aspects of the Adjustment of Status discretion have been enumerated for a long time in Policy Manual Volume 7, Part A, Chapter 10. Favorable factors include family ties, residence, employment history, and tax compliance, while adverse factors consist of status violation, unauthorized employment, misrepresentation, and criminal history. Some legal scholars, including Mintz, criticized the memo’s interpretation of policy issues in light of regulations and BIA precedents such as Matter of Arai.
The new thing the memo introduces is another factor that got much of the criticism: It regards the decision to seek adjustment within the U.S., instead of consular processing, as a factor that officers can consider.
It all came quickly back. The statement by the spokesperson reproduced above was followed by DHS describing the memo as “nothing more than a reminder to officers of their discretionary authority, which has always existed on a case-by-case basis” on May 29 and a White House official saying it is just housekeeping the next day.
PM-602-0199 EB-1A: Two Memos, Opposite Directions
This is the portion that has not been written, and it is the portion that really counts for extraordinary ability applicants.
In August 2025, USCIS took discretion out of the process at the petition stage. With respect to the discretionary nature of employment-based immigrant petitions, the updated policy manual, PA-2025-16, provided that the exercise of discretion is only relevant in cases involving a national interest waiver, which does not include EB-1A. Observers saw it as an attempt to move adjudication of the I-140 closer to a checklist approach based on statutory considerations than to one based on the weighing of subjective factors.
Nine months later, the same agency made the same decision to go in the other direction at the adjustment stage.
The result for an EB-1A applicant is a flip-flop of which side contains the soft judgment call.
Build a more complete EB-1A strategy.
I-485 Discretion: What Officers Weigh Four Months In
There is no published source that answers this, and a better question would be why do so many articles state the opposite.
For an example of the most popular one, consider the May 28 article titled “USCIS Is Already Sending RFEs Under the New Memo” and presenting the reader with a “discretionary checklist officers want you to answer” of twelve factors. There is no text of RFEs, there are no case numbers or dates provided. Twelve factors are taken from the framework of equities described in the case of Matter of Marin and Matter of Mendez-Moralez; thus, these are a synthesis of decades-old case law.
Compare that to the way a company with no interest in exaggeration puts it. “It remains to be seen how USCIS adjudicators will actually apply PM-602-0199 in individual cases,” states Emily Neumann of Reddy Neumann Brown in her May 22 article. “Officer-level implementation, RFE patterns, and denial trends will develop over the coming months.”
Four months have passed, and this statement is still true. Here are the facts of the matter in opposition to what is being circulated.
| Claim in circulation | What the record shows |
| Officers are issuing memo-specific RFEs | No published RFE text, case number, or dataset. The widely cited “checklist” derives from Marin and Mendez-Moralez. |
| EB-1A denials doubled because of the memo | Those figures are I-140 petitions in FY2025, a different adjudication, and they predate the memo. |
| I-485 denials are up under the new policy | The 11.8% average against an 8.0% decade average covers the first three quarters of the second Trump administration, a window that closed before the memo issued. |
| Courts have blocked the memo | As of a September 10, 2026 practitioner update, no challenge to PM-602-0199 had been reported. A court did vacate a different memo, PM-602-0193 on diversity visa adjustments, in Medani v. Trump on August 28. |
Denial Figures refer to the American Immigration Council Report dated August 18, 2026, based on USCIS data until FY2025. Double-check against the most recent USCIS releases before using any figure.
The confusion around the I-140 is the costliest mistake around. Denial of a petition and an adjustment are two different adjudications under different criteria, and muddling the two leads to an erroneous assessment of EB-1A.
How to Prepare Your EB-1A Adjustment of Status
Most concrete checklist following the memo comes from Reddy Neumann Brown of May 22. This is directed at H-1B and L-1 applicants, with nine points: complete history of I-797 and I-94, IRS transcripts for all years of stay in the United States, residence/property evidence, W-2s and employer letter quantifying contribution, evidence of U.S. citizen children, four to six community letters, FBI identity history summary, continuity of care in medical treatment, and evidence of petitioners’ equities.
One can see just how close it is to the approved EB-1A petition if he looks at it next to that document. Extraordinary ability petitioners already have the proof of their extraordinary ability in the form of the evidence, letters quantifying the impact, salary documentation, awards, evidence of the field of expertise gaining from the work done.
This is the practical benefit of this category and it directly ties to the spokesperson’s explanation. Applicant who has been building his case by establishing national importance is on the territory that the agency stated it will be considering. However, agency has failed to provide any clear definition of that territory.
These three caveats apply to the above as well.
- INA § 245(k) is different from favorable exercise of discretion. It forgives specific instances of violations of status for employment-based adjustment cases. Forgiveness does not cure the acts from being considered in the exercise of discretion; deal with the facts.
- Not all dual intent is equal. A variety of firms, including Hunton, in early June made a note of how H-1B and L-1 individuals were better situated, but added how lawfully holding status itself was not going to make the exercise of discretion favorably inclined automatically. O-1 visa holders seeking adjustment to EB-1A should consider their own class’ intent profile through legal consultation.
- Current effort is the criterion. Proof of effort as of the time of filing the I-140 application raises a concern regarding whether the qualifying effort is ongoing.
Evidence Strategy at this point is compiling compliance evidence with the same diligence as achievement evidence. Narrative Development means telling the same story twice about the same individual.
Both PM-602-0199 and Policy Manual, Volume 7, Part A, Chapter 10 must be consulted in their most current form prior to filing because guidance in this area has shifted three times in thirteen months. This memorandum is public.
If you’re preparing an EB-1A adjustment and wish to have the compliance record considered along with the record of extraordinary ability, consult the EB1A Experts team or schedule a free consultation.
FAQs
PM-602-0199 issued on May 21, 2026, required the officer to apply adjustment of status under INA 245(a) as discretionary relief and not an automatic result of the applicant’s eligibility.
The officer was to consider the entire context and was informed that the lack of negative circumstances does not necessarily imply an affirmative response. The reason for this is that the memo relied upon existing precedent from BIA and the federal courts.
Its two unique contributions were the notion of administrative grace and the idea that domestic filing over consular processing could matter. Both USCIS and DHS interpreted the memo in nine days.
There is no published information on this; the text of the memo still seems to be the most authoritative source of what the officers were instructed to take into account.
And the text refers back to the criteria that existed in Policy Manual Volume 7, Part A, Chapter 10. A representative statement from the USCIS provided shortly after the release of the memo included another criterion which deserves to be mentioned – it distinguished between applicants who bring economic value or interest to the country and those whom the country wants to direct overseas. None of the terms are defined either in the memo or the Policy Manual.
Do not accept any claims regarding current behavior of the officers until USCIS publishes relevant data.
There are some anecdotal reports, but there is no verifiable data to suggest that there is any measurable difference in either the rate of interviews or interview behavior by EB-1A adjustment applicants.
USCIS interview data is available on a quarterly basis with a lag, and the released data does not reflect any data post-memo. Anecdotal evidence has an inherent selection bias as individuals who receive interviews are much more likely to write about their experiences than those without.
It stands to reason that there will be more employment-based interviews due to increased discretionary review due to greater ease of evaluating credibility in person.
A compliance record must be as thoroughly documented as the record of extraordinary ability, and the discrepancy between the two must be brought out head-on in the application rather than left to be discovered by the officer.
Collect comprehensive history of I-797 and I-94 records, transcripts from the IRS, evidence of continuous employment authorization during that time, and evidence of the continuous performance of qualifying activity. Include your positive equities, family relationships, residence and community ties in document form, not just statements.
Under § 245(k), it bears repeating that statutory forgiveness doesn’t preclude discretionary considerations of that conduct. Adjustment versus consular processing must be decided upon legal advice, based on one’s status history and nonimmigrant classification.
September 23, 2026 
