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. Much of the early reaction has treated the memo as a structural blow to adjustment-of-status practice. The longer one studies the memo, however, the clearer it becomes that the reaction is overstated. The memo restates, in deliberately heavy language, what was already true about the discretionary character of adjustment under section 245 of the Immigration and Nationality Act. What it does not, and cannot, do is enlarge the agency’s discretion to cover the predicate legal and factual determinations that must precede the exercise of discretion at all.1

That distinction is the heart of this article. Adjustment of status is a two-step inquiry. The first step is statutory eligibility under INA § 245 and the related provisions, which is a question of law and a question of fact governed by ordinary burdens of proof and ordinary rules of evidence. The second step is the discretionary judgment whether a statutorily eligible applicant should receive the relief as a matter of administrative grace. PM-602-0199 speaks to the second step. It does not, and may not, alter the first. USCIS has discretion to grant or deny an adjustment once eligibility is established. It does not have discretion to misstate the burden of proof, to convert statutory eligibility questions into discretionary preferences, to substitute speculation for evidence, or to immunize legal error by attaching the word discretion to a conclusion.

Read with that understanding, the memo may, paradoxically, expose the agency to more reversals on judicial review, not fewer. The more aggressively officers reach for discretionary language to avoid the legal and factual findings the statute requires, the more clearly they expose denials to attack for conflating eligibility with discretion, evading evidentiary burdens, and substituting policy rhetoric for reasoned adjudication. The memo therefore changes the tone of adjustment adjudication. It does not change the grammar.

The Memo and Its Rhetorical Move

The memo’s textual claims are familiar. Adjustment under section 245 is granted only as “a matter of discretion and administrative grace.” Matter of Blas, 15 I&N Dec. 626, 628 (BIA 1974; A.G. 1976), aff’d, 556 F.2d 586 (9th Cir. 1977) (table). It is “extraordinary” relief that dispenses with the ordinary consular visa process. Id. at 630. The applicant bears the burden of showing that discretion should be exercised favorably. Matter of Mendez-Moralez, 21 I&N Dec. 296, 300 (BIA 1996). The Supreme Court has repeatedly described relief from removal, including adjustment, as a matter of grace. E.g., Patel v. Garland, 596 U.S. 328, 332 (2022); Santos-Zacaria v. Garland, 598 U.S. 411, 426 (2023). The doctrinal building blocks are old, well-known, and, for the most part, uncontroversial. The author has discussed several of them at length in earlier writings on this site. See Alexander J. Segal, Matter of Arai, 13 I&N Dec. 494 (BIA 1970): Weighing Adverse Factors and Equities in AOS Adjudication; Alexander J. Segal, Exercise of Discretion in USCIS Adjudications.

What is new in PM-602-0199 is not the doctrine. What is new is the rhetoric. The memo frames every adjustment applicant as someone who is, by definition, asking USCIS to make an exception to the “ordinary” consular process Congress preferred. It treats the perceived contravention of congressional preference as a freestanding adverse factor that the applicant must “offset” with “unusual or even outstanding equities,” borrowing the language of Matter of Blas, 15 I&N Dec. at 641, while loading that language more heavily than the BIA itself loaded it in Matter of Arai, 13 I&N Dec. 494 (BIA 1970). And it cautions that “the absence of adverse factors, by itself, does not demonstrate such unusual or outstanding equities.” PM-602-0199, at 5.2

The rhetoric is calibrated. The memo nowhere amends the statute, the regulations, or the Policy Manual’s discussion of the burden and standard of proof. It nowhere abrogates Matter of Arai’s baseline rule that, in the absence of adverse factors, adjustment will ordinarily be granted as a matter of discretion. It nowhere disturbs the longstanding allocation of the burden of proof under 8 C.F.R. § 1240.8 in removal proceedings or under the regulations governing USCIS adjudication. What it does, instead, is push officers toward discretionary denials by saturating the framework with adverse-sounding adjectives. See Alexander J. Segal, Exercise of Discretion in USCIS Adjudications (discussing the 2020 policy alert that began this rhetorical trajectory).3

None of that, however, can do the work the memo’s tone implies. The rhetoric of “extraordinary” relief and “administrative grace” does not change what adjustment of status actually is at the level of statutory architecture. Adjustment is a two-step inquiry, and the two steps are governed by very different rules.

The Two-Step Structure of Adjustment Adjudication

Section 245(a) of the INA provides that the status of an alien inspected and admitted or paroled into the United States “may be adjusted by [the Secretary], in his discretion,” if the alien meets specified eligibility requirements: he applies for adjustment, he is eligible to receive an immigrant visa and is admissible for permanent residence, and an immigrant visa is immediately available. INA § 245(a), 8 U.S.C. § 1255(a). The statute thus separates two distinct questions. The first is whether the applicant qualifies. The second is whether, having qualified, he should be granted the relief as a matter of discretion.

This separation is not a matter of academic taxonomy. It controls the burden of proof, the standard of proof, the kind of evidence the agency must muster to make a finding, and the scope of judicial review. The Supreme Court itself underscored the separation in Wilkinson v. Garland, 601 U.S. 209 (2024). The immigration judge in Wilkinson denied cancellation of removal at the eligibility stage by finding that the statutory hardship standard was not met. Because the judge denied at step one, he “never reached the second step” of discretion. Id. at 225. The Court held that the step-one determination was a mixed question of law and fact, reviewable as a “question of law” under 8 U.S.C. § 1252(a)(2)(D). Id. at 217-25. The lesson generalizes. Step-one determinations are not insulated by the discretionary character of step two.

Statutory eligibility is established by a preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010); Matter of E-M-, 20 I&N Dec. 77 (Comm’r 1989). The discretionary judgment, by contrast, is not a fact-finding exercise governed by a probabilistic burden. It is a totality-of-the-circumstances weighing in which the applicant must persuade the agency that he merits a favorable exercise of discretion. Matter of Mendez-Moralez, 21 I&N Dec. at 300. The two inquiries use different tools and answer different questions. The author has written separately on the operation of the preponderance standard in immigration adjudication. See Alexander J. Segal, Preponderance of Evidence in the Immigration Context (Matter of E-M-).

PM-602-0199 acknowledges this structure on its face. The memo speaks of officers “consider[ing] the totality of the circumstances” and “weigh[ing] all the relevant evidence,” and it cites Matter of Mendez-Moralez for the balancing framework. PM-602-0199, at 5. It does not purport to relocate ineligibility determinations into the discretionary basket. The memo’s vulnerability lies not in what it says about discretion, but in what officers may be tempted to do under its banner.

What “Discretion” Cannot Cover For

The temptations are predictable. They fall into four families.

First, the burden of proof. The standard of proof for adjustment eligibility is preponderance of the evidence. The standard for admissibility, when admissibility is at issue, is the higher “clearly and beyond doubt” showing. These standards are creatures of regulation and of decisional law. See 7 USCIS-PM A.10; 8 C.F.R. § 1240.8. A policy memorandum cannot raise them. An officer who treats an applicant’s evidence as insufficient because the officer demands proof greater than a preponderance, or because the officer demands corroboration unavailable in the country of nationality, has misapplied the burden of proof, not exercised discretion. The author has discussed this dynamic in the related context of removal-stage waivers. See Alexander J. Segal, Maric v. Sessions, 854 F.3d 520 (8th Cir. 2017): Burden of Proof in Establishing Eligibility for Waiver of Deportability.4

Second, the conversion of statutory eligibility into a discretionary preference. Several categories of adjustment applicants are subject to eligibility bars under section 245(c), or to specific waiver requirements, or to category-specific rules under sections 245(h), (i), and (m). When the question presented is whether an applicant falls within or outside one of those statutory provisions, the answer is legal. It is not a matter of grace. A finding that an applicant is, for example, ineligible as a section 245(c)(2) overstay, or eligible because his overstay was “through no fault of his own or for technical reasons,” is a legal determination. Pinho v. Gonzales, 432 F.3d 193, 204 (3d Cir. 2005). The same is true of admissibility determinations under section 212. These predicate determinations cannot be relabeled as discretionary by the simple expedient of denying “in discretion.” See Alexander J. Segal, Unauthorized Employment Bars to Adjustment of Status (discussing the architecture of the section 245(c)(2) bar and the “no fault of his own or for technical reasons” exception); Alexander J. Segal, AOS 245(c)(2) Issues After Asylum Referral to Immigration Court (same).

Third, the substitution of speculation for evidence. The memo invites officers to consider conduct “inconsistent with the purpose” of a nonimmigrant admission or parole, and to weigh whether an applicant’s representations to consular or DHS officers were honest. PM-602-0199, at 5. Those are legitimate areas of inquiry. But an officer who infers preconceived intent to immigrate from the bare fact that a B-2 visitor later married a U.S. citizen, or who treats a brief gap in nonimmigrant status as evidence of bad faith without record support, is making findings, not exercising discretion. Findings require evidence. The BIA has long held that preconceived intent alone does not defeat an adjustment based on an immediate-relative petition. Matter of Cavazos, 17 I&N Dec. 215, 217-18 (BIA 1980); Matter of Ibrahim, 18 I&N Dec. 55, 57-58 (BIA 1981). The memo does not, and could not, overturn those holdings.

Fourth, the use of “discretion” as a label to insulate legal error. This is the temptation most directly addressed by the analysis that follows. If an officer applies the wrong legal standard, misallocates the burden of proof, ignores controlling BIA authority, or fails to consider material evidence in the record, the resulting denial is reversible regardless of whether the officer captioned the denial as discretionary. The Supreme Court has been clear, in Patel and again in Wilkinson, that the discretionary character of the ultimate judgment does not absorb every antecedent legal question. 596 U.S. at 339-40; 601 U.S. at 217-25.

Judicial Review After Patel, Guerrero-Lasprilla, Wilkinson, and Bouarfa

The memo’s rhetorical strategy depends in part on the assumption that judicial review is largely unavailable. That assumption is wrong as a generalization, though it contains a kernel of truth. A careful look at the relevant case law shows where the kernel is and where the rhetoric overreaches.

The relevant statute is 8 U.S.C. § 1252(a)(2). Subparagraph (B)(i) strips federal court jurisdiction to review “any judgment regarding the granting of relief” under enumerated discretionary provisions, including section 245. Subparagraph (D), known as the safe harbor, preserves review of “constitutional claims or questions of law” raised on a petition for review in a court of appeals.

In Patel v. Garland, 596 U.S. 328 (2022), the Supreme Court held that subparagraph (B)(i) reaches the factual findings underpinning a discretionary judgment. Patel had checked the wrong box on a Georgia driver’s license application. The immigration judge made a factual finding that he had done so intentionally. The Court held that the factual finding was not separately reviewable. Id. at 339. The decision drew a four-Justice dissent and considerable criticism, but it is the governing law on pure questions of fact within discretionary-relief judgments.

Two years earlier, in Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020), the Court held that the phrase “questions of law” in subparagraph (D) includes the application of a legal standard to undisputed or established facts, also known as mixed questions of law and fact. Id. at 225. Two years after Patel, the Court reaffirmed that holding in Wilkinson v. Garland, 601 U.S. 209 (2024), and applied it to the cancellation of removal’s hardship standard. The Wilkinson Court was explicit: the immigration judge’s hardship determination was not discretionary because the judge had denied at the eligibility step, and the application of a statutory standard to established facts was a mixed question reviewable under the safe harbor. Id. at 217-25.5

The two opinions are sometimes read in tension. They are not. Patel addressed pure facts within discretionary judgments. Wilkinson addressed the application of legal standards to established facts at the eligibility step. Together they leave intact a meaningful safe harbor for legal questions and mixed questions. Bouarfa v. Mayorkas, 604 U.S. _ (2024), decided in December 2024, reinforces the same architecture from a different angle: it held that the revocation of an approved visa petition for what the Secretary deems “good and sufficient cause” is a discretionary decision insulated from review under subparagraph (B)(ii), but it expressly noted that nondiscretionary statutory determinations remain subject to ordinary review.6

Several practical consequences follow for adjustment practice.

In the court of appeals, on a petition for review of a final order of removal, the safe harbor remains the principal vehicle for challenging a discretionary denial that masks a legal error. Whether the officer applied the correct legal standard, whether the officer misallocated the burden of proof, whether the officer ignored controlling BIA precedent, whether the officer applied the right statutory test to the established facts: all are reviewable as questions of law or as mixed questions of law and fact. Wilkinson, 601 U.S. at 217-25; Guerrero-Lasprilla, 589 U.S. at 225. Patel forecloses argument that an officer’s factual inference was wrong on the facts. It does not foreclose argument that the officer asked the wrong legal question, used the wrong standard, or treated a statutory term as a discretionary preference.

In the district court, for applicants whose adjustment applications were denied by USCIS outside the removal-proceedings context, the Administrative Procedure Act remains a viable path for challenging legal errors that go to eligibility. Pinho v. Gonzales, 432 F.3d 193, 200-04 (3d Cir. 2005), held that the determination of eligibility for adjustment, as distinct from the granting of adjustment itself, is a “purely legal question” not committed to agency discretion. Id. at 204. The Supreme Court in Patel explicitly declined to address the reviewability of USCIS denials made outside removal. 596 U.S. at 346 (“The reviewability of such decisions is not before us, and we do not decide it.”). District courts have continued to entertain APA challenges to USCIS eligibility determinations in the right procedural posture, though the doctrine varies by circuit.7

The takeaway is not that judicial review is robust across the board. It is not. The takeaway is that PM-602-0199 cannot, by repeated invocation of the word “discretion,” collapse the safe harbor that Guerrero-Lasprilla and Wilkinson preserved, or insulate eligibility determinations from APA review where it remains available.

The Memo’s Self-Inflicted Vulnerability

The structural point now comes into focus. The memo invites officers to deny in discretion. Each time an officer follows that invitation by relabeling a legal question or an evidentiary gap as a discretionary judgment, the officer hands the applicant the makings of a viable appeal.

Consider an officer who denies an employment-based adjustment because the applicant briefly fell out of status during a transition between H-1B employers, treating the gap as evidence that the applicant “failed to comply with the conditions” of his nonimmigrant admission. If the officer treats that gap as a category-defeating fact under section 245(c)(2), the issue is legal: did the gap qualify as a failure “other than through no fault of his own or for technical reasons” within the statutory exception, or, for an employment-based applicant, does the section 245(k) safe harbor apply? See Alexander J. Segal, Exemptions from Adjustment of Status Bars for Certain Employment-Based Applications. Those questions are reviewable. If the officer instead treats the gap as a discretionary negative factor, the officer must still articulate it as such, weigh it against the positives in the record, and explain why the negatives outweigh the positives. Mendez-Moralez, 21 I&N Dec. at 300. A conclusory denial that simply recites the gap and announces an unfavorable exercise of discretion is reviewable as a failure to provide reasoned decisionmaking. See 8 C.F.R. § 103.3(a)(1)(i) (denial notices must explain the specific reasons for denial); PM-602-0199, at 6 (acknowledging this requirement).

Consider an officer who denies a marriage-based adjustment by characterizing the applicant’s pre-marriage conduct as showing preconceived intent to immigrate, without record evidence beyond the simple fact that the applicant married after entry. Matter of Cavazos forecloses that result for immediate-relative petitions in the absence of additional adverse factors. 17 I&N Dec. at 217-18. The denial is reversible regardless of the discretionary caption.

Consider an officer who denies adjustment to an asylee under INA § 209 on the ground that country conditions have improved, without addressing the agency’s own regulations and without articulating the factual basis for the conclusion. Section 209 adjustment is subject to its own statutory and regulatory rules. See Alexander J. Segal, Adjusting Status as an Asylee. The officer’s invocation of discretion does not paper over a failure to address the controlling regulation.

The pattern is the same in each example. The memo encourages officers to deny in discretion. The cases that follow on that path will tend to be the cases in which the discretionary label is doing legal work the discretionary label cannot do. Each such denial is more, not less, vulnerable to attack on review.

Practical Implications

For the bar generally, three implications follow from the analysis above.

The first implication is one of casework. Every adjustment package now needs to be built with discretion in mind. That means a discretionary factors memorandum or affirmative statement of equities should accompany the I-485 in cases where any negative factor could plausibly be in play. Family ties, length of residence, employment history, tax compliance, community service, the absence of a criminal record, the absence of prior immigration violations, evidence of hardship to qualifying relatives, evidence of contributions to U.S. employers, all of these belong in the file before the officer asks for them. The Mendez-Moralez balancing structure is the natural skeleton.

The second implication is one of preservation. Practitioners must build the record at the agency level with judicial review in mind, even though judicial review may never be invoked. That means stating legal arguments squarely in writing, citing controlling BIA and Supreme Court authority, identifying the applicable burden of proof and standard of proof in writing, and pinning the officer to the legal framework. A request for evidence response that simply provides documents is incomplete. A response that frames the documents within the controlling legal standard, identifies the burden of proof, and addresses any anticipated adverse factors with concrete supporting evidence, is the record on which a reviewable denial can be built.8

The third implication is one of framing on review. If an unfavorable decision issues, practitioners should resist the gravitational pull of the discretionary label. The proper questions are: did the officer apply the correct legal standard? Did the officer correctly allocate the burden of proof? Did the officer identify the specific adverse factors with record support? Did the officer weigh the positives the applicant put forward? Did the officer treat a statutory eligibility question as if it were a discretionary preference? Each of those questions is a question of law or a mixed question of law and fact. Each is reviewable in the right procedural posture, either on petition for review under the safe harbor or, where applicable, under the APA in district court.

For the specific applicant whose file prompted this analysis, and for the many similarly situated applicants whose adjustment files will be adjudicated under PM-602-0199 in the months ahead, the implications are tangible. The threshold question is whether anything in the file gives an officer a plausible adverse factor to work with. If the answer is yes, the file must include direct, evidence-backed responses to each anticipated adverse factor, paired with a written articulation of the positive equities and a citation to the governing standards. If the answer is no, the file should still be built to Arai baseline strength, with positive factors in the record, so that any discretionary denial would be exposed as untethered to the record.

If the application is denied, the analysis above suggests two paths. Where the denial issues outside of removal and rests on a contested legal interpretation, an APA challenge in district court may be available under the Pinho line. Where the applicant is in removal proceedings and the issue is presented on a petition for review, the safe harbor preserved by Guerrero-Lasprilla and Wilkinson remains the workhorse for challenging legal error masquerading as discretion. In either case, the work of identifying and preserving the legal question begins long before the denial.

PM-602-0199 has rearranged the rhetoric of adjustment of status. It has not rearranged the law. The two-step structure of adjustment, the allocation of the burden of proof, the role of evidence in fact-finding, the scope of discretion, and the scope of judicial review all remain what they were on May 20, 2026. What has changed is the need for attentiveness. The memo will produce more discretionary denials. Many of those denials will reach for the word discretion to do work the word cannot do. Each time that happens, the applicant has an argument. The professional duty now is to make sure the argument is made and made well.

  1. The thesis examined here was first sharpened for the author in an exchange on a practitioner listserv shortly after PM-602-0199 was issued. The author is grateful to the colleagues who pressed the point that the memo’s discretionary framing cannot cover non-discretionary predicate determinations. The treatment in this article is the author’s own.
  2. PM-602-0199 reads, in one of its central passages, that the absence of adverse factors does not, by itself, satisfy the showing of unusual or outstanding equities required when an applicant proceeds by adjustment rather than by consular processing. That phrasing tracks the language of Matter of Blas but loads it more heavily than the BIA did in Matter of Arai, which treated the absence of adverse factors as ordinarily sufficient to warrant a favorable exercise of discretion in adjustment cases.
  3. The point is not that the BIA has abandoned Matter of Arai. It has not. The point is that the memo’s rhetorical center of gravity sits much closer to the older language of Matter of Ortiz-Prieto, which Matter of Arai expressly clarified and softened. Practitioners should expect officers to lean on the memo’s framing and on the criminal-waiver line of cases the memo invokes, even though those cases involve a different statutory architecture.
  4. USCIS itself has long acknowledged in the Policy Manual that the standard of proof for adjustment eligibility is preponderance of the evidence. See 7 USCIS-PM A.10. Nothing in PM-602-0199 purports to change that standard, and nothing in it could. The burden of proof and standard of proof are creatures of regulation and decisional law, not of policy memorandum.
  5. The Supreme Court emphasized this very distinction in Wilkinson, observing that the immigration judge in that case never reached the discretionary step because he held the applicant statutorily ineligible. That sequencing matters: when the agency decides the threshold legal question against the applicant, the discretionary safe harbor is not yet in play, and judicial review of the legal question proceeds normally.
  6. The interplay between Patel and Wilkinson is sometimes misdescribed as a tension or a partial retreat. It is neither. Patel addressed pure questions of fact embedded in discretionary-relief judgments. Wilkinson addressed the application of a statutory legal standard to established facts. The two opinions occupy different terrain and, read together, leave intact a robust safe harbor for legal questions and for mixed questions of law and fact.
  7. The APA path is far from a panacea. District courts continue to dismiss APA challenges where removal proceedings are pending or where the underlying determination is genuinely discretionary. But for ineligibility determinations made by USCIS outside removal, in particular determinations that rest on a contested interpretation of a statute or regulation, the door has not been closed.
  8. Practitioners should not, of course, build a case around the assumption that review will be available. The better posture is to assume that the administrative record is the only record that will matter and to make the legal and factual case as completely as possible at the agency level. That is true regardless of PM-602-0199, but the memo gives an additional reason to do so.