Published: 05/25/2026| Author: Attorney Joseph Botelho, Botelho Law Group PLLC | Course: The Marriage Green Card System
Introduction
On May 21, 2026, U.S. Citizenship and Immigration Services issued Policy Memorandum PM-602-0199, titled “Adjustment of Status is a Matter of Discretion and Administrative Grace, and an Extraordinary Relief that Permits Applicants to Dispense with the Ordinary Consular Visa Process.” In the days since publication, the memo has generated significant concern across the marriage-based green card community. Social media has filled with declarations that adjustment of status is effectively dead, that applicants must now leave the country to process abroad, and that pending I-485 cases are at risk of denial.
Some of that concern is warranted. Much of it is not.
This article walks through what the new USCIS memo actually says, what it changes in practice, what it does not change, and what marriage-based green card applicants should do about it. The analysis is grounded in the operative memo text rather than the more aggressive language in the USCIS press release, because what USCIS officers will apply when they decide your case is the operative text — not the headline.
If you are a student of The Marriage Green Card System course, the dedicated update playlist on our YouTube channel, @ImmigrationCoursesBotelho, walks through this material in video form across three long-form videos. If you are not yet enrolled, this article is designed to give you the full picture so you can decide whether the course is right for your situation.
What the memo actually says
PM-602-0199 reframes adjustment of status under Section 245 of the Immigration and Nationality Act as a discretionary form of relief — described in the memo as a matter of “discretion and administrative grace” and an “extraordinary form of relief” that permits applicants to “dispense with the ordinary consular visa-issuing process.” The memo instructs USCIS officers to evaluate every adjustment of status application under a totality-of-the-circumstances analysis, weighing positive factors against negative ones to determine whether a favorable exercise of discretion is warranted.
The negative factors the memo identifies include: violations of immigration law or the conditions of any prior immigration status; current or previous fraud or false testimony in dealings with USCIS or any government agency; conduct after admission that was inconsistent with the purpose of the nonimmigrant status or parole; failure to comply with the conditions of nonimmigrant admission or parole; and — described as “highly relevant” — failure to depart the United States as expected.
The positive factors include: family ties to the United States; immigration status and history; the applicant’s moral character; and any other relevant factor that bears on whether the applicant warrants a favorable exercise of discretion.
The memo also expressly states that the absence of negative factors does not, by itself, establish the “unusual or even outstanding equities” needed to overcome any adverse factors that are present. In plain English: an empty negative column is not the same thing as a full positive column. Applicants must now affirmatively prove their positive equities, not just stay out of trouble.
What did not change
Before going further, it is worth being precise about what the new memo does not do, because much of the public commentary has overstated the scope of the change.
The memo does not amend Section 245 of the Immigration and Nationality Act. The statute that authorizes adjustment of status is unchanged. Congress did not pass new legislation. USCIS did not amend a regulation. Applicants who meet the statutory eligibility requirements under Section 245(a) remain eligible to apply.
The memo does not eliminate any adjustment of status category. Family-based, employment-based, humanitarian, and special-program adjustments are all still available subject to their existing statutory requirements.
The memo does not require any applicant to depart the United States. USCIS cannot order an applicant to leave through a policy memo. The agency can deny an adjustment application — and it can do so on discretionary grounds under the new framework — but denial of an adjustment application is not the same thing as a removal order.
The memo does not change the underlying eligibility analysis. Bona fide marriage requirements under Section 204, the bars to adjustment under Section 245(c), the medical exam requirements under Section 212(a)(1), and the affidavit of support requirements under Section 213A are all unchanged.
And the memo does not change the law on dual intent. Holders of H-1B, L-1, O-1, and other dual-intent nonimmigrant categories may still apply for adjustment of status while maintaining their nonimmigrant status. The memo expressly acknowledges this — though it also notes, importantly, that maintaining lawful dual-intent status is not by itself sufficient to warrant a favorable exercise of discretion.
What did change: the second gate
So if the law did not change, what did? The answer is the posture USCIS is now telling its own officers to take when they review applications.
Before this memo, when a USCIS officer picked up a marriage green card file, the practical question they asked was: does this person qualify? Did they enter lawfully? Are they married to a U.S. citizen? Is the marriage bona fide? Are they admissible? If the answers were yes, the case typically got approved. Discretion existed in the statute, but officers used it as a rubber stamp.
After this memo, the same officer now asks two questions. Question one is the same as before: does this person qualify? Question two is new in practice: does this person also deserve a favorable exercise of discretion to receive permanent residence from inside the United States, instead of being required to leave the country and go through consular processing abroad?
That second question is the second gate. Your case has to pass through both gates now. Passing through the eligibility gate is no longer enough.
To be clear, this is not a new legal doctrine. Section 245 of the INA has always said that the agency may, in its discretion, adjust the status of an eligible applicant. The word “discretion” has been in the statute the entire time. What is new is that USCIS is now telling its officers to actually treat discretion as a separate analytical step rather than as a formality. The doctrine has always been there. The aggressive use of that doctrine is what is new.
Press release versus memo body — an important distinction
One detail is worth flagging because almost no one on social media has gotten it right. The USCIS press release that accompanied the memo declared that adjustment of status would now be granted “only in extraordinary circumstances.” That phrase has been quoted everywhere — on TikTok, on Instagram, in news coverage, and in some attorney commentary.
That exact phrase does not appear in the body of the operative memo.
It came from the press release — the political messaging that surrounded the memo’s release. USCIS officers do not apply press releases when they decide cases. They apply the operative memo text. And the operative memo text is more nuanced than the press release headline. It still requires a totality-of-the-circumstances analysis. It still allows for approval where the positive equities outweigh the negative ones. It still leaves adjustment of status available as a lawful path to permanent residence.
Preparing your case to the press-release standard rather than the actual memo standard is a self-defeating choice. We are going to prepare cases to the standard the memo actually imposes.
Who faces the most risk
Not every marriage green card applicant is affected equally by the new memo. There are essentially three risk tiers.
The highest risk tier includes anyone with a status violation in their immigration history. This includes visa overstays — people who entered on a tourist visa, a student visa, or a temporary work visa and stayed past their authorized period. It includes ESTA entrants who stayed beyond the ninety-day Visa Waiver period. It includes tourist visa holders who married a U.S. citizen shortly after entry, where USCIS might raise questions about preconceived intent. It includes F-1 students who fell out of status. And it includes parole entrants whose parole period has expired. The memo’s language about failure to depart and conduct inconsistent with the original visa purpose is pointed directly at these groups.
The moderate risk tier includes applicants whose marriage timing might raise preconceived intent questions, applicants with status violations short of a full overstay, applicants with periods of unauthorized work, and applicants with prior visa denials or border issues. These cases are not necessarily losing cases. They require careful preparation and honest, structured handling of the adverse facts.
The strongest position tier is immediate relatives of U.S. citizens — spouses, children under twenty-one, and parents of adult U.S. citizens — who have maintained valid lawful status, have no immigration violations, have a clean criminal record, and have substantial U.S. ties. These cases will still get approved. The new memo did not change that fundamental reality. But even these applicants should now build a stronger discretionary record than they would have built last year. The bar moved for everyone.
Why pending cases are also affected
A practical question many applicants are asking: if my I-485 was filed before May 21, 2026, does the new memo apply to me? The answer is yes, and the reason is worth understanding.
Most USCIS policy changes contain a grandfathering provision that limits application to cases filed after a specific effective date. This memo does not. There is no effective date. There is no prospective-only language. There is no carve-out for pending applications.
This is because USCIS frames the memo as a restatement of existing law rather than as a policy change. The agency’s position is essentially that discretion has always been available and that officers are simply being reminded to exercise it more carefully. Under that framing, the agency applies the memo to every case still pending — because discretion is judged at the time of final adjudication, not at the time of filing.
If your I-485 is currently pending, you should not panic. Most pending cases will still be approved. But you should treat the pending case as if you were filing fresh under the new memo. Strengthen your discretionary record while there is still time. If you receive a Request for Evidence asking about discretionary factors, treat it as an opportunity to submit a supplemental discretionary statement and additional supporting evidence.
The consular processing alternative is not what people think
USCIS framing of the new memo suggests that applicants should consular process abroad instead of adjusting status in the United States. There is, however, an inconvenient reality that almost no one in the official messaging is acknowledging.
At the same moment USCIS is steering applicants toward consular processing, the U.S. Department of State has experienced significant staff reductions and has suspended immigrant visa processing for nationals of approximately seventy-five countries. Consular backlogs are up across the board. For many applicants, consular processing is not a faster path or a safer path — it is a longer, more uncertain, and sometimes outright unavailable path.
This matters because the documented unavailability of consular processing for your country, or the documented delays at the relevant consulate, can itself be a factor supporting a favorable exercise of discretion under the totality-of-the-circumstances analysis. If the alternative path the memo prefers is not actually available to you in any practical sense, that fact belongs in your application package.
What to do now
If you are preparing to file a marriage-based green card application, or if you have one currently pending, here is the practical guidance.
First, confirm your statutory eligibility under Section 245(a) and clear any Section 245(c) bars. The eligibility analysis is unchanged, and no amount of discretionary advocacy can rescue a case that fails the threshold eligibility test.
Second, prepare your bona fide marriage evidence package to the same standard taught in Module 2 of The Marriage Green Card System course. The standards for proving a bona fide marriage are unchanged.
Third, build a Discretionary Equities Package across the seven evidence categories we walk through in the course updates: family ties, hardship to qualifying relatives if you were forced to leave, moral character evidence, tax and legal compliance, community and professional contributions, honest treatment of adverse facts in your history, and an explanation of why consular processing is not the right path for your specific case.
Fourth, prepare a sworn discretionary statement, signed under penalty of perjury, that walks through each of those categories with cross-references to the supporting evidence in your package. The discretionary statement is the most important document you will file under the new memo, and most applicants do not even know it exists.
Fifth, update the cover letter for your I-485 package to include a dedicated section requesting a favorable exercise of discretion under INA Section 245(a) and PM-602-0199. The original cover letter format from Module 3.9 of the course still applies — what is added is this new section that frames the discretionary advocacy for the reviewing officer.
Finally, prepare for the interview. USCIS officers in 2026 are reportedly asking four specific questions tied to the new discretionary framework: why are you adjusting status instead of consular processing; what factors prevent you from consular processing; do you have family in your home country; and why did you not return. Each of these questions deserves a prepared answer that you rehearse with your spouse before the interview.
When to consider attorney representation
The Marriage Green Card System course is designed for applicants whose cases are straightforward enough to handle on their own with proper attorney-designed guidance. Under the new memo, the line between straightforward and complex moved. Some cases that were previously good candidates for DIY filing are now strong candidates for representation.
Indicators that you should consider attorney representation rather than DIY filing include: an overstay longer than one hundred eighty days, which triggers the inadmissibility analysis under Section 212(a)(9)(B) and may require an I-601A waiver alongside the adjustment application; any unauthorized employment history; a prior visa denial or border issue; any criminal history, including arrests without convictions; a prior immigration violation, including any past misrepresentation to a consular or CBP officer; an existing I-485 that has received an RFE on discretionary factors; or an existing I-485 that has already been denied.
The Confidence Credit Guarantee built into The Marriage Green Card System course was designed for exactly this situation. If you enroll in the course and later decide that your case exceeds what you should be handling on your own, the full course fee credits toward representation by Botelho Law Group PLLC. You do not lose your investment. You walk into the consultation already trained, already prepared, and already understanding your case at a paralegal level — which makes you a more effective client and saves significant time in the representation.
Conclusion
USCIS Policy Memo PM-602-0199 changed the way adjustment of status applications will be adjudicated. It did not eliminate the process. It did not close the door on marriage-based green card filings. What it did do is raise the bar for what a strong application looks like — and it created an opportunity for prepared applicants to distinguish their cases from the routine filings that may now face increased scrutiny.
The Marriage Green Card System course has been updated to reflect the new memo, with a dedicated three-video update playlist on our YouTube channel, an updated cover letter template, a full discretionary statement template, and the free Discretionary Equities Checklist available for download. Existing students get all updates at no additional cost. New students receive the updated course package upon enrollment.
If your situation calls for representation rather than DIY filing, Botelho Law Group PLLC offers free consultations at 508-500-1551 or through the consultation page at us-immigration-lawfirm.com/free-consultation/.
Whatever you decide, you have options. The new memo did not take that away.