INA §245(a) • USCIS PM-602-0199 • Form I-485

Discretion Under INA §245(a)

Satisfying the statutory eligibility requirements for adjustment of status does not necessarily compel USCIS to approve Form I-485. INA §245(a) states that qualifying status “may be adjusted” in the Attorney General's discretion, authority now exercised by DHS and USCIS in the cases within its jurisdiction. On May 21, 2026, USCIS issued Policy Memorandum PM-602-0199 emphasizing the discretionary character of adjustment and directing officers to weigh all relevant positive and negative circumstances, including immigration history, family ties, moral character, prior representations to government, conduct after admission or parole, and other relevant factors.

May 21, 2026 Memo

PM-602-0199 did not repeal INA §245 or eliminate adjustment of status.

The memorandum reinforces and reframes USCIS's exercise of existing statutory discretion. It does not amend the text of INA §245, make every applicant leave for consular processing, or create a new statutory adjustment bar. It directs officers, where adjustment is discretionary, to consider the totality of the circumstances and to treat the regular immigrant visa process abroad as relevant to the discretionary framework.

Three-Part Discretion Review

Build the discretionary record before USCIS identifies the problem

Identify Adverse Facts

Review status violations, overstays, unauthorized employment, prior statements, criminal history, removal history, inconsistent conduct, and other negative evidence.

Explain and Mitigate

Determine the legal significance of each adverse fact and provide context, correction, rehabilitation, or other mitigating evidence where appropriate.

Document Positive Equities

Develop family, humanitarian, employment, community, financial, rehabilitation, service, and other evidence supporting favorable discretion.

Current USCIS Guidance

The officer must consider the totality of the circumstances.

PM-602-0199 instructs officers to consider all relevant information rather than deciding discretion from one isolated fact.

The memorandum specifically identifies immigration-law violations, violations of status conditions, fraud or false testimony in government dealings, the circumstances surrounding admission or parole, conduct inconsistent with the purpose of the status or representations made to government, and failure to comply with admission or parole conditions as relevant considerations.

It also requires consideration of positive evidence, including family ties, immigration history, moral character, and any other factor bearing on whether favorable discretion is warranted.

INA §245(a) expressly makes ordinary adjustment discretionary

INA §245(a) provides that the status of a qualifying applicant “may be adjusted” in the discretion of the adjudicating authority.

This means there are ordinarily two distinct questions:

Is the applicant legally eligible to adjust?
If legally eligible, should adjustment be granted as a favorable exercise of discretion?

Important Distinction

A discretionary concern is not necessarily a statutory ground of ineligibility. Officers should first determine statutory eligibility and then conduct the discretionary analysis where the statute requires one.

USCIS Policy Memorandum PM-602-0199

USCIS issued PM-602-0199 on May 21, 2026.

The memorandum describes adjustment under INA §245 as:

Discretionary;
A matter of administrative grace;
An alternative to ordinary immigrant visa processing abroad; and
A benefit requiring evaluation of the complete individual record.

The memorandum directs USCIS officers, where adjustment is within USCIS discretion, to consider all relevant facts and information under the totality of the circumstances.

The memo did not create a new §245 eligibility element. The statutory admission, immigrant classification, admissibility, visa-availability, and adjustment-bar rules remain.

What did the May 2026 memorandum actually change?

Discretion in adjustment cases existed long before 2026.

Cases such as Matter of Arai, Matter of Blas, Matter of Patel, and later agency guidance recognized discretionary adjustment adjudication for decades.

PM-602-0199 is significant because it:

Places renewed emphasis on discretion in ordinary I-485 adjudications;
Emphasizes adjustment as an exception to regular consular visa processing;
Specifically highlights immigration history and conduct after admission or parole;
Directs officers to consider whether conduct was inconsistent with representations made when seeking a visa, admission, or parole;
Identifies failure to comply with conditions or depart as highly relevant; and
Requires a reasoned balancing analysis when USCIS denies as a matter of discretion.

The memorandum does not say that every person eligible for consular processing must be denied adjustment. The required determination remains individualized.

Statutory eligibility should be separated from discretion

Before reaching discretion, determine whether the applicant satisfies:

INA §245(a)'s entry requirement or an exception;
Immigrant visa eligibility;
Visa availability;
Admissibility;
INA §245(c), §245(d), §245(e), and other applicable restrictions; and
Category-specific requirements.

An officer should not use “discretion” as a substitute for identifying an actual statutory ground of ineligibility. Where USCIS denies solely as a matter of discretion, the decision should identify the discretionary analysis.

Positive discretionary factors

No single list applies mechanically to every case.

Depending on the circumstances, positive factors can include:

Close U.S. citizen or lawful permanent resident family ties;
Hardship to the applicant or family;
Length of residence in the United States;
Stable employment;
Career or professional contribution;
Payment of taxes;
Property ownership;
Business ownership or job creation;
Community service;
Military service;
Caregiving responsibilities;
Rehabilitation;
Evidence of good moral character;
Educational achievement;
Humanitarian circumstances;
Compliance with immigration requirements;
Evidence explaining or mitigating earlier adverse conduct; and
Other social and humane considerations.

Relevant evidence should be case-specific. A stack of generic character letters is usually less useful than evidence directly addressing the negative factor USCIS must weigh.

Negative discretionary factors

Potential adverse circumstances can include:

Immigration violations;
Failure to maintain status;
Violation of the conditions of admission or parole;
Unauthorized employment;
Failure to depart when expected;
Fraud;
False testimony;
Materially inconsistent statements to government;
Conduct inconsistent with the purpose for which a visa, admission, or parole was obtained;
Criminal conduct;
Repeated violations of law;
Evidence reflecting adversely on moral character;
Noncompliance with government orders; and
Other conduct relevant to suitability for permanent residence.

Not Every Negative Factor Has Equal Weight

The officer must evaluate the nature, recency, seriousness, circumstances, frequency, and relevance of the adverse evidence rather than merely count positive and negative items.

Immigration violations after admission or parole

PM-602-0199 places particular emphasis on immigration history.

USCIS directs officers to consider:

Violations of immigration law;
Violations of conditions attached to immigration status;
The circumstances of admission or parole;
Conduct after entry inconsistent with the purpose of that status or parole;
Failure to comply with admission or parole conditions; and
Failure to depart when expected.

A statutory exemption from an adjustment bar does not necessarily make the underlying conduct irrelevant to discretion. For example, an immediate relative may be statutorily exempt from certain §245(c) status bars while USCIS separately evaluates the immigration history in the discretionary analysis.

Fraud, false testimony, and prior government statements

The 2026 memorandum specifically directs officers to consider current or previous instances of fraud or false testimony in dealings with USCIS or another government agency.

The adjustment review should therefore compare:

Prior visa applications;
DS-160 answers;
CBP statements;
Prior Forms I-485;
Forms I-130, I-140, I-539, I-765, or I-589;
SEVIS information;
Immigration court testimony;
Consular interviews; and
The current Form I-485.

Discretion should not be confused with inadmissibility. If USCIS believes INA §212(a)(6)(C)(i) applies, it should separately analyze the statutory fraud or misrepresentation elements. Conduct that fails to establish statutory inadmissibility could still be relevant to discretion if supported by the record.

Conduct after nonimmigrant admission and intent at entry

PM-602-0199 instructs officers to consider whether conduct after admission was inconsistent with:

The purpose of the nonimmigrant classification; or
Representations made to consular or DHS officers when seeking the visa or admission.

This can be relevant in cases involving:

B-1/B-2 admission followed by rapid permanent-residence activity;
F-1 admission followed by conduct inconsistent with student status;
Parole granted for a specified temporary purpose;
Employment inconsistent with the admitted classification; or
A pattern suggesting prior representations require closer examination.

Timing Is Evidence, Not an Automatic Rule

A later marriage, immigrant petition, or Form I-485 does not automatically prove that the applicant misrepresented intent at entry. USCIS must evaluate the actual evidence and total circumstances.

H-1B, L-1, and other dual-intent considerations

PM-602-0199 expressly recognizes dual-intent nonimmigrant classifications.

The memorandum states that applying for adjustment is not inconsistent with simultaneously maintaining lawful status in a category permitting dual intent.

But dual intent is not an automatic discretionary approval. The memorandum also states that maintaining lawful status in a dual-intent category, standing alone, is not sufficient to compel a favorable exercise of discretion.

The complete immigration history and positive and negative factors remain relevant.

Overstay and failure to depart

A qualifying immediate relative can often adjust despite an overstay because Congress exempted immediate relatives from specified §245(c) bars.

Under the 2026 discretionary framework, however, USCIS can separately consider the person's immigration history.

Relevant facts may include:

Length of the overstay;
Reason the person remained;
Whether the violation was isolated or repeated;
Family and humanitarian circumstances;
Whether the person made inaccurate representations;
Whether lawful alternatives existed;
Subsequent compliance; and
Other positive equities.

Statutorily forgiven does not always mean discretionarily irrelevant. The correct response is to distinguish statutory eligibility from the later discretionary weighing process.

Unauthorized employment as a discretionary factor

Unauthorized employment can be statutorily excused in several adjustment contexts, including:

Qualifying immediate relatives;
Approved VAWA self-petitioners;
Qualifying INA §245(i) applicants; and
Qualifying employment-based applicants within INA §245(k).

USCIS may nevertheless consider the broader immigration history where adjustment remains discretionary.

Context matters. A brief technical period resulting from an administrative mistake presents a different discretionary record from repeated knowing violations combined with false statements to government.

Criminal conduct and discretionary adjustment

A criminal event can raise two independent questions:

Does INA §212(a)(2) make the applicant inadmissible?
Even if not inadmissible, does the conduct weigh against favorable discretion?

Potential considerations include:

Nature of the conduct;
Seriousness;
Age at the time;
Recency;
Whether conduct was isolated or repeated;
Disposition;
Compliance with sentencing;
Rehabilitation;
Remorse;
Subsequent conduct; and
Countervailing equities.

A dismissal or non-CIMT determination does not necessarily make the underlying conduct invisible to discretion. But USCIS should accurately characterize what the record establishes and should not treat an arrest alone as proof that alleged criminal conduct occurred.

Family ties and humanitarian considerations

USCIS identifies family ties as relevant to the discretionary determination.

Evidence can include:

U.S. citizen spouse;
U.S. citizen children;
Lawful permanent resident relatives;
Care of elderly or disabled relatives;
Medical needs;
Financial dependency;
Educational needs of children;
Length and stability of family relationships;
Caregiving responsibilities; and
Consequences of requiring immigrant visa processing abroad.

Not Limited to Waiver-Level Hardship

A discretionary adjustment record can include humanitarian and family considerations even when the applicant is not required to satisfy a particular statutory “extreme hardship” waiver standard.

When unusual or outstanding equities may become important

Longstanding BIA precedent recognizes that substantial adverse factors may require stronger countervailing equities before favorable discretion is warranted.

Matter of Arai and related cases are frequently cited in the adjustment-discretion framework.

Where serious negative factors exist, supporting evidence may need to go beyond routine documentation and establish:

Exceptional family circumstances;
Significant humanitarian concerns;
Long-term rehabilitation;
Major professional or economic contribution;
Extensive community contribution;
Military or public service;
Longstanding lawful ties; or
Other substantial positive equities.

The absence of negative factors is not the same as showing extraordinary positive equities. The level of evidence required depends on the nature and weight of the adverse circumstances.

What must a discretionary denial say?

PM-602-0199 expressly reminds officers that a denial notice must state the specific reasons for denial.

When USCIS denies adjustment based on unfavorable discretion, the memorandum states that the decision must include:

An analysis of the positive factors;
An analysis of the negative factors; and
An explanation of why the negative factors outweigh the positive factors.

A conclusory statement that the applicant “does not merit discretion” should be examined carefully. Current USCIS guidance calls for a reasoned balancing analysis when discretion is the basis for denial.

This can be important in determining whether to pursue:

Form I-290B motion;
Reconsideration based on legal error;
Reopening with additional evidence;
Renewal of adjustment in removal proceedings where available; or
Federal judicial review where jurisdiction and applicable review provisions permit.

Not every adjustment statute uses exactly the same discretionary framework

PM-602-0199 repeatedly qualifies its guidance by referring to situations where adjustment is in USCIS's discretion.

Special adjustment programs can contain their own:

Eligibility language;
Discretionary standards;
Waiver authority;
Humanitarian considerations;
Mandatory or restricted factors; and
Agency jurisdiction.

Examples include:

Refugee adjustment;
Asylee adjustment;
T and U adjustment;
SIJ adjustment;
Cuban Adjustment Act;
VAWA;
S nonimmigrant adjustment;
Registry; and
Other special statutory programs.

Start with the statute governing the particular category. Do not assume every special adjustment program is identical to ordinary INA §245(a).

Matter of Arai remains an important BIA precedent concerning how favorable and adverse factors are weighed in adjustment cases. See Matter of Arai and Adjustment Discretion for the case-specific analysis.

Adjustment discretion evidence checklist

Area	Potential Evidence
Family	Marriage and birth records, declarations, dependency evidence, caregiving documentation.
Hardship	Medical, psychological, educational, financial, and caregiving evidence.
Employment	Employment history, employer letters, professional achievements, payroll and tax records.
Taxes	IRS transcripts, tax returns, payment plans, proof of compliance.
Community	Volunteer history, nonprofit service, religious or civic participation, community letters.
Rehabilitation	Treatment, counseling, probation completion, educational programs, lengthy positive record.
Immigration history	I-94s, prior applications, explanation of violations, proof of later compliance.
Prior statements	Copies of visa applications, government filings, interview records, explanations of discrepancies.
Humanitarian factors	Medical needs, disability, victimization, family dependency, unusual personal circumstances.
Public contribution	Military service, research, business activity, job creation, public service, professional contribution.

Best Practice

If the record contains a meaningful adverse factor, address discretion affirmatively rather than assuming that statutory eligibility will cause USCIS to overlook it.

Frequently asked questions

If I meet every I-485 requirement, must USCIS approve my case?

Not necessarily. Ordinary INA §245(a) adjustment is discretionary. A statutorily eligible applicant generally must also warrant a favorable exercise of discretion.

Did the May 2026 memorandum eliminate adjustment of status?

No. PM-602-0199 did not repeal or amend INA §245. It directs USCIS officers regarding how existing statutory discretion should be exercised.

Does the memo require everyone to consular process?

No. The memorandum emphasizes ordinary consular visa processing in its discretionary framework but continues to recognize statutory adjustment pathways and requires individualized adjudication.

Can an overstay count against an immediate relative even though §245(c)(2) does not bar adjustment?

Potentially. Congress's immediate-relative exemption establishes statutory eligibility, while USCIS can separately evaluate relevant immigration history in the discretionary analysis.

Does H-1B dual intent protect me?

PM-602-0199 expressly recognizes that seeking adjustment is not inconsistent with maintaining a dual-intent classification. But lawful dual-intent status alone does not compel favorable discretion.

Can USCIS consider an arrest that did not result in a conviction?

USCIS may consider relevant conduct in a discretionary analysis, but the evidentiary record matters. An arrest alone does not establish that the alleged conduct occurred.

Can USCIS consider unauthorized employment that is statutorily forgiven?

Potentially as part of the broader immigration history where discretion applies. The statutory exemption and the discretionary analysis should be treated as separate questions.

What must USCIS say if it denies solely as a matter of discretion?

Current PM-602-0199 states that the decision should identify the positive and negative factors considered and explain why the negative factors outweigh the positive ones.

Should every I-485 include a separate discretionary brief?

Not necessarily. But where significant adverse factors exist, proactively documenting mitigation and positive equities can be important under the current USCIS framework.

Primary Authorities

Adjustment discretion authorities

Statute

INA §245(a) / 8 U.S.C. §1255(a)

2026 USCIS Policy

PM-602-0199 — Adjustment of Status Is a Matter of Discretion and Administrative Grace

USCIS Policy Manual

Volume 7, Part A, Chapter 10 — Legal Analysis and Use of Discretion

General Discretion

USCIS Policy Manual, Volume 1, Part E, Chapter 8 — Discretionary Analysis

BIA Precedent

Matter of Arai, 13 I&N Dec. 494 (BIA 1970)

Legal content reviewed August 30, 2026. USCIS Policy Memorandum PM-602-0199, dated May 21, 2026, directs officers adjudicating discretionary adjustment applications to consider all relevant positive and negative factors under the totality of the circumstances. The memorandum expressly recognizes dual-intent classifications and requires a reasoned balancing analysis when USCIS denies adjustment as an unfavorable exercise of discretion.

Does your I-485 contain a significant discretionary issue?

The Messersmith Law Firm, P.A. handles complex adjustment matters involving prior immigration violations, fraud allegations, criminal history, discretionary evidence, RFEs, NOIDs, adjustment denials, motions to reopen or reconsider, and federal litigation.

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