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The Legal Immigrant podcast covers U.S. immigration problems that Dyan Williams Law PLLC can help you solve. Through success stories and Q&As, we'll discuss waivers of inadmissibility due to fraud or misrepresentation, criminal offense, unlawful presence, illegal entries, and removal orders; motions to reconsider inadmissibility bars; marriage-based green card, spousal immigrant visa, K-1 fiance visa; naturalization issues; and more.
Website: www.dyanwilliamslaw.com
USCIS Policy Alert: Approval of Form I-485, Adjustment (Green Card) Applications is Now an Extraordinary Relief
Form I-485, Adjustment of Status is for eligible applicants who are already in the United States and are seeking to obtain a green card. USCIS Policy Memorandum PM-602-0199, issued on May 21, 2026, instructs USCIS officers to consider adjustment of status an extraordinary relief. This means USCIS may deny adjustment applications, as a matter of discretion, if it determines the applicant should instead apply for an Immigrant Visa at the U.S. Embassy/Consulate abroad.
The policy does not change the eligibility requirements to obtain a green card through the Form I-485 application process. Rather, it emphasizes that adjustment to permanent residence within the United States is a discretionary benefit, instead of an entitlement or normal path to receiving a green card.
USCIS officers are expected to more carefully consider whether a Form I-485 applicant deserves approval, based on the totality of circumstances and the best interest of the United States. Under prior policy, USCIS would normally issue an Approval Notice if the applicant met the statutory eligibility requirements and had no inadmissibility bars.
The Policy Memo directs USCIS officers to apply higher discretionary scrutiny in weighing the positive versus the negative factors. It notes that unless Form I-485 applicants have unusual or outstanding equities, USCIS may not permit them to bypass the Immigrant Visa application process.
The Policy Memo states that with limited exceptions, the statutory scheme suggests that Congress expects paroled and nonimmigrant applicants to depart for Immigrant Visa processing, rather than apply for adjustment of status. It adds that an attempt to avoid the consular immigrant visa process is usually accompanied by violations of U.S. immigration laws. And these negative factors must be offset by the showing of unusual or even outstanding equities.
New applicants or applicants with pending cases should prepare to show favorable factors to warrant an approval, under the totality of the circumstances. They should also address how any negative factors are not enough to support a denial. Information and documents may be submitted with the Form I-485 application or in response to a Request for Evidence or Notice of Intent to Deny from USCIS.
Positive Factors that USCIS Considers
In deciding whether to approve the Form I-485 application, on discretionary grounds, USCIS considers positive factors. Examples are:
Strong family ties, such as a bona fide marriage to a U.S. citizen or permanent resident.
Hardship to the applicant or close relatives if the adjustment application is denied.
Service in the U.S. armed forces.
Long authorized stay and maintenance of valid nonimmigrant status, such as H-1B and L-1.
Property, investment, or business ties in the United States, especially when they add to the nation’s economic interests.
Education, skills and training that are highly beneficial and are relevant to the applicant’s current or prospective employment.
Lack of a criminal record.
Compliance with tax laws.
Voluntary community service to society.
Negative Factors that USCIS Considers
In determining whether to deny the application, as a matter of discretion, USCIS considers negative factors, such as:
Absence of close family and community ties in the United States.
Violating the terms of parole or temporary status like F-1 student or B-1/B-2 visitor, by working without authorization, overstaying the authorized period or switching quickly to another status.
Fraud or false testimony in dealings with USCIS or any other government agency.
Entering a sham marriage to a U.S. citizen or permanent resident for the purpose of obtaining U.S. immigration benefits.
Criminal history, especially when it involves serious crimes, multiple offenses, or recent violations.
Failure to pay taxes owed or child support.
Public safety or national interest concerns, such as applicants who have endorsed or promoted anti-American views or views of a terrorist group on social media.
Although the shift in policy will affect a wide range of applicants, it is likely to have NO or LESS of an impact on:
K-1 fiance nonimmigrants who enter the U.S. specifically to marry a U.S. citizen and then apply for a marriage-based green card, plus their K-2 minor children.
H-1B and L-1 nonimmigrants who are allowed to have dual intent, plus their H-4 and L-2 spouse and minor children.
O-1, TN, E-2, and E-3 visa holders who are maintaining continuous lawful status through authorized employment in the U.S.
Immediate relatives of a U.S. citizen because they have statutory exemptions for certain status violations, like failing to maintain lawful status or overstaying the authorized period. (An Immediate Relative is a U.S. citizen’s spouse; a U.S. citizen’s unmarried child under 21; or a U.S. citizen’s parent – if the citizen is age 21 or older).
Refugees and asylees who file for adjustment of status under INA 209(c), not 245(a).
Humanitarian-based T and U visa applicants.
VAWA-based applicants.
Special Immigrant Juveniles (SIJs).
Options if USCIS Denies Your Form I-485 Application
When USCIS denies a benefit request, it must issue a written denial notice explaining the specific reasons for the decision. If the denial is based on an unfavorable exercise of discretion, the denial notice must describe the positive and negative factors considered, along with an explanation of why the negative factors outweigh the positive factors.
If USCIS denies your Form I-485 application as a matter of discretion, but you otherwise meet the eligibility requirements to obtain a green card, you have four main options:
1. Submit a Motion to Reconsider or Reopen to USCIS. This involves timely filing the Form I-290B, Notice of Appeal or Motion with the appropriate USCIS office, explaining how USCIS made the wrong decision or requesting USCIS consider new and material evidence that was unavailable in the prior application.
2. File a new Form I-485 Application with USCIS. This must include new, material information and documents demonstrating extraordinary circumstances to obtain the “extraordinary” relief of adjustment of status.
3. Apply for an Immigrant Visa through consular processing. This requires you to depart the United States, submit the Form DS-260 Immigrant Visa application and other required documents to the U.S. Department of State, and attend a scheduled visa interview at the U.S. Embassy/Consulate. You will need to obtain a Form I-601 or I-601A waiver if you are subject to being found inadmissible upon departure from the United States, due to accrual of unlawful presence.
Unlawful presence begins on day one of when you remain in the U.S. beyond your authorized period, if you are age 18 or older, and have no change or extension of status application pending with USCIS. Accruing more than 180 days to less than one year of unlawful presence creates a 3-year bar to re-entry under INA 212(a)(9)(B). The bar is 10 years if the unlawful presence lasted one year or more.
4. Remain in the U.S. without lawful status and wait to receive a Notice to Appear (Form I-862) in removal proceedings before the Immigration Court from the U.S. Department of Homeland Security. You may present the Form I-485 application as a defense to removal, assuming you are statutorily eligible for this relief, but USCIS denied it as a matter of discretion.
In some cases, pursuing Form I-485 adjustment in removal proceedings might be less risky than consular processing, where you could be stuck abroad due to the unlawful presence bar or other inadmissibility issues, administrative delays, and U.S. travel bans preventing Immigrant Visa grants. But if the Immigration Court denies your I-485 application, you could end up with a Removal Order, instead of a Voluntary Departure grant. This would then make you inadmissible for 10 years under INA 212(a)(9)(A)(ii). You would need an approved Form I-212, Application for Consent to Reapply for Admission, to receive the Immigrant Visa abroad before this 10-year bar expires.
Get proper legal advice to help you choose your best option if your I-485 is denied.
Congress passed laws to make adjustment of status available to Immediate Relatives of U.S. citizens and other eligible applicants. Policies are guidelines on how to apply the laws. They are more flexible and temporary and can be changed or updated more easily. Whether the USCIS Policy Memo will stand up against federal court litigation or other challenges is uncertain. There could be more guidelines on how it affects different categories of applicants on a case-by-case basis.
Although the USCIS Policy Memo discourages adjustment of status, eligible Form I-485 applicants are not forbidden from applying for it when the law does not prohibit them from doing so.
Consult an experienced U.S. immigration attorney to help you (1) assess your eligibility for Form I-485, adjustment of status, (2) demonstrate the positive factors warrant a favorable exercise of discretion, and (3) supplement your pending Form I-485 application or strengthen a new application.
To request a consultation on an I-485 green card or Immigrant Visa application, you may be reach me by email at info@dyanwilliamslaw.com. Be sure to include a summary of your case and the reason you need counsel. For more information on the I-485 application process, be sure to check out my immigration blog at dyanwilliamslaw.com. The links are in the show notes.
This content is general information and is for educational purposes only. It is based on current U.S. immigration laws, regulations and policies that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and even cases that seem similar can have different outcomes. The sharing or receipt of this information does not create an attorney-client relationship.