In a newly released policy memorandum (PM-602-0199), U.S. Citizenship and Immigration Services (USCIS) has sent a clear message to applicants that adjusting status within the United States is an “extraordinary relief” and an act of administrative grace, not an automatic right. The memorandum serves as a stark reminder that the standard mechanism for permanent immigration remains the overseas consular visa process. By reemphasizing the discretionary nature of Section 245(a) of the Immigration and Nationality Act (INA), USCIS signals a more rigorous scrutiny of domestic green card applications particularly for individuals who have failed to maintain their nonimmigrant status or depart as originally expected.
The memorandum grounds its directive in decades of federal jurisprudence and Board of Immigration Appeals (BIA) precedents, such as Matter of Blas, noting that adjustment of status was never intended to supersede regular consular visa issuance. The agency emphasizes that Congress designed a strict statutory framework that favors the orderly process of applying for immigrant visas from abroad. When nonimmigrants or parolees remain in the United States past their authorized periods to seek adjustment, USCIS views this as a subversion of Congressional intent. According to the memo, bypassing the consular process can be considered an adverse factor that applicants may need to overcome by demonstrating “unusual or even outstanding equities”.
The policy directive orders USCIS officers to take a holistic, case-by-case view of the “totality of the circumstances” when deciding whether an applicant merits a favorable exercise of discretion. Officers are explicitly directed to weigh several negative factors heavily:
- Immigration Violations: Any past or current violations of immigration laws or conditions of status.
- Failure to Depart: An applicant’s failure to leave the U.S. when their initial nonimmigrant admission or parole period expired, especially if they could have pursued a normal immigrant visa from abroad.
- Inconsistent Conduct: Actions taken after entry that contradict the stated purpose of their nonimmigrant visa or representations made to consular officers.
- Fraud or Misrepresentation: Any history of false testimony or fraud in dealings with government agencies.
The memorandum clarifies that maintaining a lawful nonimmigrant status that permits “dual intent” (such as an H-1B or L-1 visa) is not inherently inconsistent with applying for adjustment. However, the agency explicitly notes that maintaining dual intent status is not sufficient on its own to guarantee a favorable exercise of discretion.
To ensure these discretionary reviews are legally sound, USCIS is imposing stricter drafting requirements on its own officers. When an adjustment of status application is denied based on an unfavorable exercise of discretion, the written denial notice must now provide a detailed, case-specific analysis. Adjudicators must explicitly outline both the positive and negative factors considered and clearly explain why the negative elements outweighed the positive equities. This memorandum sets the stage for a more demanding adjudication environment. USCIS has indicated that it intends to review various pathways and discrete applicant populations to identify specific categories that may warrant closer inspection.
The takeaway is clear, satisfying the basic statutory and regulatory eligibility requirements for a green card is no longer the finish line. Building a robust record that highlights positive equities such as deep family ties, strong moral character, and contributions to the community will be vital to securing an act of “administrative grace” in an increasingly stringent landscape.
Please note that this article is not legal advice and is not intended as legal advice. The article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does create any attorney client relationship between you and the Law Offices of Kenneth U. Reyes, APC. This article is not a solicitation.
Attorney Kenneth Ursua Reyes was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration. He is a licensed Attorney and CPA in California. LAW OFFICES OF KENNETH REYES, APC. is located at 3699 Wilshire Blvd., Suite 747, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail kenneth@kenreyeslaw.com. Web: kenreyeslaw.com
