Author: Tristan Mirasol

On May 21, 2026, U.S. Citizenship and Immigration Services (USCIS) issued Policy Memorandum PM-602-0199 — a directive that immediately triggered alarm headlines across the country. Media reports declared that green card applicants would now have to “go back to their countries” to obtain their visas. Immigration advocates characterized it as the latest in a series of attacks on legal immigrants. And USCIS’s own press release invoked language far harsher than anything in the memo itself.

As immigration attorneys at the Tancinco Law P.C., our job is to cut through the noise. Here is what this policy memorandum actually does, what it does not do, who it affects — and why, despite real concern, this is not the time to give up.

Understanding Adjustment of Status

For those unfamiliar with the term, adjustment of status is the process by which a non-immigrant — someone already physically present in the United States on a temporary visa — applies for a green card without having to leave the country. It is one of two pathways to lawful permanent residence; the other is consular processing at a U.S. Embassy or Consulate abroad.

Three common examples illustrate how it works:

• A visitor visa holder within authorized stay meets a U.S. citizen, they marry, and the U.S. citizen petitions their spouse. The nonimmigrant spouse may adjust status to that of a green card holder from within the United States.

• A foreign student on an F-1 visa graduates, is recruited by a U.S. company, and secures an employment-based visa petition. The student may then adjust status based on the approved petition without departing the country.

• A parolee who entered the U.S. on humanitarian grounds is petitioned by a U.S. citizen parent. The parolee may generally apply for adjustment of status and obtain a green card in the United States.

What makes adjustment complicated is when the applicant has fallen out of status. Under existing law, those who have fallen out of status are generally not permitted to adjust status inside the United States — with important exceptions: when the petition is filed by a U.S. citizen immediate relative (spouse, parent, or child), or when specific statutory grounds for waiver of unlawful status exist, such as Section 245(i) of the Immigration and Nationality Act.

What the Memo Actually Says — and What It Does Not

The policy memorandum, PM-602-0199, reaffirms that adjustment of status is a discretionary benefit under Section 245(a) of the Immigration and Nationality Act. It instructs USCIS officers to treat that discretion as a live, meaningful inquiry — not a rubber stamp — and to weigh all positive and negative factors in each case.

Critically, the law itself — Section 245(a) — does not use the words “extraordinary relief” or “act of grace.” The statute says that status “may be adjusted by the Secretary, at his discretion.” The characterization of adjustment as extraordinary relief derives from Board of Immigration Appeals (BIA) decisions and federal court rulings cited throughout the memo, not from the text of the law itself. This distinction matters enormously for any future legal challenge.

WHAT THE MEMO DOES SAY:

• Directs adjudicating immigration officers to weigh all relevant positive and negative factors taking into account totality of circumstances
• Consider violations of immigration law (e.g. staying beyond authorized stay), fraud, failure to depart and conduct inconsistent with visa status as adverse factors
• Applicants have the burden of proof in demonstrating positive equities noting that a clean record is not enough
• Denials of Adjustment Applications by USCIS officers must be in writing with a specific analysis of why negative outweigh positives

WHAT THE MEMO DOES NOT DO

• It does not amend or repeal INA § 245 or any regulation
•  It does not eliminate any green card eligibility category
• It does not direct applicants to abandon U.S.-based filings and go through consular processing.
• It does not override statutory protections for immediate relatives or 245(i) beneficiaries.
• It explicitly states it may not be relied upon to create any right or remove immigration officer’s  discretion.

The Press Release vs. The Policy: A Critical Distinction

Much of the panic generated by this memo stems not from the memo itself, but from how USCIS chose to announce it. The USCIS’ press release used the phrase that USCIS “will grant Adjustment of Status only in extraordinary circumstances” — language that does not appear anywhere in the body of PM-602-0199.

Nowhere in the policy memorandum does USCIS direct applicants for adjustment of status to go through consular processing. The memo is unambiguous on this point: it “is intended solely for the guidance of USCIS personnel in the performance of their official duties” and “does not remove their discretion in making adjudicatory decisions.”

If a case is meritorious and there are genuine equities, the policy memo clearly requires the adjudicating officer to look at the totality of the circumstances — not apply an “extraordinary circumstances” standard as the press release implied. Green card applications remain a case-by-case determination. The existence of a negative factor does not mean discretion must automatically bite.

A Filipino Case, a Buried Dissent, and an Uncanny Warning for Today

What few observers have noted is that the foundational case cited throughout this policy memo — Matter of Blas, 15 I&N Dec. 626 (BIA 1974) — involves a Filipino national. Pedro Blas was a Philippine citizen married to a U.S. citizen whose application for adjustment of status was denied by an immigration judge on discretionary grounds, with findings of fraud and misrepresentation in his nonimmigrant visa application.

The majority of the Board affirmed the denial. But the dissenting opinion of BIA Chairman Roberts deserves far more attention than the majority ruling — because it anticipated, with remarkable precision, the exact danger that unchecked discretionary authority poses today.

“Unless some objective standards are laid down for the exercise of administrative discretion, decisions could be based on our own unfettered and subjective notions. An intolerant immigration judge could deny relief to aliens whose cultural patterns, moral standards, or lifestyle differed from his own. A hostile or xenophobic immigration judge could vent his spleen on aliens he personally considered offensive without articulating the actual basis for his decision.”

— BIA Chairman Roberts, dissenting, Matter of Blas (1974)

That warning — issued over fifty years ago in a case involving a Filipino applicant — is precisely what concerns us about this new policy guidance. The memo quotes Matter of Blas extensively for the proposition that adjustment is discretionary. What it does not quote is Chairman Roberts’ prescient caution against the dangers of exactly that discretion exercised without objective standards.

For the Filipino community — and indeed for all immigrant communities of color — this history is not abstract. It is a reminder of how easily discretionary authority, if left unchecked, can become a vehicle for the very bias that immigration law is supposed to prevent.

Who Are Most Affected?

The memo’s practical impact will be felt most acutely by three populations:

• Overstays and status violations. Nonimmigrants who overstayed or violated status — tourist visa holders, F-1 students who fell out of status, and others who remained beyond authorized periods. These factors now weigh heavily at the discretionary stage, even where the underlying petition is valid and approvable.

• Dual-intent visa holders. Even H-1B and other dual-intent visa holders are not automatically insulated. The memo acknowledges dual intent as permissible but makes clear that maintaining lawful status alone is not sufficient to guarantee a favorable exercise of discretion.

• Parolees. Parolees — particularly those who entered under CHNV and similar humanitarian parole programs. USCIS frames the act of remaining to adjust, rather than departing when the parole purpose ends, as an adverse factor. This is a direct concern for many Filipino beneficiaries of humanitarian parole programs.

On the other side, applicants with strong positive equities — U.S. citizen family members, U.S. citizen children, long records of tax compliance, stable employment, and deep community ties — remain well-positioned if their case is properly presented. The key is documentation and advocacy, not silence. In this climate, a complete record and a compelling argument are not optional. These are everything.

The Legal Landscape: Will Courts Push Back?

This is not the first time this administration has used policy memoranda to reshape immigration adjudication — and it is not the first time the courts have been called to respond. In a recent Northern District of Illinois case (No. 26 C 2389), a federal judge granted a temporary restraining order against USCIS, blocking the application of earlier 2025–2026 policy memos to a pending I-485 on the grounds that the policy violated the Administrative Procedure Act (APA). That case provides a roadmap.

PM-602-0199 is strategically drafted to be harder to challenge. By grounding every denial in “discretion,” USCIS is invoking the shield of Patel v. Garland (2022), in which the Supreme Court held that federal courts lack jurisdiction to review factual findings in discretionary relief proceedings. In other words, if USCIS calls it a discretionary judgment, courts may not be able to second-guess the individual outcome.

However, the legal community has identified several vulnerabilities in this policy:

• The immediate relative problem. The memo creates a tension that may be legally indefensible for immediate relatives of U.S. citizens — a group Congress explicitly protected from many of the Section 245(c) bars. USCIS may not be able to reimpose at the discretionary stage what Congress deliberately removed at the eligibility stage.

• APA rulemaking requirements. Because the memo does not go through notice-and-comment rulemaking, a pattern of denials following its directives could be challenged under the APA as arbitrary and capricious agency action — not as attacks on individual decisions, but on the policy itself.

• The denial notice requirement is a double-edged sword. The memo’s own requirement that discretionary denials include a written analysis of positive and negative factors creates a paper trail. Inconsistent, inadequately reasoned, or pattern denials of similarly-situated applicants become evidence in any class action or broad challenge.

A TRO or nationwide injunction against PM-602-0199 is unlikely immediately — the memo seems too carefully drafted to existing case law for a facial challenge to succeed today. The more probable path is a series of as-applied challenges once denials accumulate, particularly in cases of immediate relatives and lawfully-present employment-based applicants where the legal tension is sharpest.

Our Assessment: Do Not Give Up — But Do Not Wait

Despite all the policy pronouncements, regulatory changes, and executive orders of this administration — the attacks on birthright citizenship, the arrests in immigration courts, the revocations of naturalization — there are always judicial avenues to defend rights and uphold the Constitution. That principle holds here.

PM-602-0199 is a significant development. It is not a death sentence for adjustment of status cases. But it is a clear signal that the era of filing and waiting is over. Every I-485 must now be argued — not just assembled. Every application must anticipate the discretionary question and answer it affirmatively, with evidence, before the officer even asks.

WHAT THIS MEANS FOR YOUR CASE — ACTION STEPS

1.  Document your positive equities comprehensively.

     U.S. citizen or LPR family members, U.S. citizen children, years of tax compliance, community ties, employment history, and hardship factors must all be in the record — not assumed.

2.  Address negative factors proactively.

     Overstays, status lapses, or prior violations should be explained, contextualized, and offset — not left for the officer to discover and weigh alone.

3.  If denied, demand the written analysis — and use it.

     The memo requires written reasons for discretionary denials. An inadequate or pretextual denial notice is both appealable and evidence in any broader legal challenge.

4.  Consult legal counsel immediately.

     If you have a pending I-485 or are planning to file, a full case review under this new standard is essential — before USCIS conducts its own.

(Atty. Lourdes Santos Tancinco, Esq. is a San Francisco based immigration attorney of Tancinco Law, P.C. an immigrant rights advocate . She may be reached at 1 888 930 0808, law@tancinco.com or facebook.com/tancincolaw, or through her website www.tancinco.com)