Introduction

The two prior articles in this series examined U.S. Citizenship and Immigration Services Policy Memorandum PM-602-0199 from two different angles. The first article addressed the memorandum’s underlying legal architecture and argued that the two-step structure of adjustment of status under section 245 of the Immigration and Nationality Act (INA) does not collapse into the discretionary basket simply because the memorandum repeatedly invokes the word “discretion.” See Alexander J. Segal, Discretion Is Not a Shield for Legal Error in Adjustment of Status Adjudications. The second article addressed the operational footprint of the memorandum at the field-office interview and proposed a structured response to the new line of questioning practitioners have begun to encounter at the front end of the adjustment interview. See Alexander J. Segal, Adjustment of Status After PM-602-0199: Early Field Reports and the New Line of Interview Questioning.

This third article in the series takes a step back and looks at the memorandum itself. Specifically, it walks the memorandum’s text, distinguishes what the memorandum decides from what it does not, and identifies a recurring tendency in the practitioner commentary to attribute to the memorandum operational propositions that the memorandum’s text does not contain.1 The exercise is neither pedantic nor adversarial. Practitioner commentary in the days following the issuance of a significant policy memorandum is a public good, and the practitioner organizations and law firms whose alerts and pointers we will discuss have performed that public service capably. The point, rather, is that there is a difference between what a memorandum says and what a memorandum has been read to say in the course of the practitioner conversation that has built around it, and that difference will matter when individual cases are litigated against the memorandum’s framework in the months ahead. Counsel who can articulate precisely what the memorandum requires, and precisely what it does not, will be in a stronger position than counsel who has absorbed the practitioner gloss without auditing it against the underlying text.

The Memorandum at a Glance

PM-602-0199 is six pages long. It is divided into five sections: Purpose, Authority, Background and Analysis, Guidance, and Use. The Purpose section is a single paragraph that frames the memorandum as a reminder to officers and the public that adjustment of status under section 245 of the INA is, and has long been, a matter of discretion and administrative grace. PM-602-0199, at 1. The Authority section is a two-line citation to INA § 103(a)(3) and INA § 245(a). Id. The Use section, at the close of the memorandum, is a single paragraph of standard agency boilerplate disclaiming any creation of enforceable rights. Id. at 6.

The substantive content of the memorandum is contained in two sections: Background and Analysis, occupying pages 1 through 5, and Guidance, occupying the bottom of page 5 and most of page 6. The Background and Analysis section is largely a doctrinal restatement. It quotes Matter of Blas, 15 I&N Dec. 626, 628 (BIA 1974; A.G. 1976), at length; it cites Patel v. Garland, 596 U.S. 328, 332 (2022), Kucana v. Holder, 558 U.S. 233, 247 (2010), Santos-Zacaria v. Garland, 598 U.S. 411, 426 (2023), and Elkins v. Moreno, 435 U.S. 647, 667 (1978), for the general proposition that adjustment is a matter of grace; and it surveys a number of court of appeals decisions that have used the word “extraordinary” to describe adjustment. PM-602-0199, at 1–2 nn.1–4. The section then discusses the statutory architecture of section 245(a), the bars under section 245(c), the case-by-case nature of the discretionary exercise, and the agency’s view that aliens admitted or paroled into the United States are generally expected to depart when the purpose of the admission or parole is accomplished. Id. at 3–5.

The operational portion of the memorandum is the Guidance section. It is about a page in length. It tells officers what to consider when exercising discretion under section 245(a) of the INA and how to document the resulting denials. It is the Guidance section, more than the Background and Analysis section, that bears the operational weight of the memorandum. It is also, on a close reading, narrower than the practitioner commentary suggests.

What the Memorandum Decides

The memorandum’s affirmative decisions, that is, the propositions for which the text of the memorandum is direct support, are the following.

First, the memorandum identifies the categories of adjustment of status that are non-discretionary and that therefore lie outside its scope. Footnote 24 of the memorandum names four such categories by statutory authority: INA § 209(a)(2) (refugee adjustment), Title II of Pub. L. 105-100 (NACARA), Division A, Section 902 of Pub. L. 105-277 (HRIFA), and Section 7611 of the FY2020 National Defense Authorization Act, Pub. L. 116-92 (LRIF). PM-602-0199, at 6 n.24. The footnote is significant.2 It is the only place in the memorandum where the agency identifies the categories outside the memorandum’s reach, and the express inclusion of section 209(a)(2) confirms that refugee adjustment is non-discretionary as a matter of agency policy as well as statutory text. The asymmetry between section 209(a) (mandatory) and section 209(b) (discretionary) is therefore one of the few things the memorandum decides expressly, even if it does not draw the asymmetry out in the body text.

Second, the memorandum’s footnote 20 limits the discretionary value of dual-intent status. The memorandum reminds officers, in the body of the Guidance section, that “applying for adjustment of status is not inconsistent with simultaneously maintaining nonimmigrant status in a category with dual intent.” Id. at 5. Footnote 20, however, qualifies that statement: “[m]aintaining lawful status in a dual intent nonimmigrant category is not sufficient, on its own, to warrant a favorable exercise of discretion.” Id. at 5 n.20. The two propositions together mean that an H-1B or L-1 applicant cannot be denied on the basis of the choice to adjust, but cannot rely solely on the dual-intent status to overcome other adverse factors. This is the memorandum’s only express limitation on the dual-intent carveout.

Third, the memorandum requires that denials be reasoned. It cites 8 C.F.R. § 103.3(a)(1)(i) for the requirement that denial notices “explain in writing the specific reasons for denial.” Id. at 6. It further requires that, “[w]hen the denial is based on an unfavorable exercise of discretion, the denial notice must include an analysis containing the positive and negative factors considered, along with an explanation of why the negative factors outweigh the positive factors in the decision.” Id. This is a reasoned-decisionmaking requirement that the memorandum imports from the existing regulation and the existing Policy Manual but states with particular force. Practitioners challenging a denial issued under the memorandum should treat the absence of this analysis as a freestanding ground of attack.

Fourth, the memorandum reserves the agency’s authority to issue future guidance specific to particular categories of adjustment applicants. It states that USCIS “will carefully review the various pathways to discretionary adjustment of status as well as discrete populations of aliens applying for adjustment of status” and “may provide policy guidance specific to certain adjustment of status categories or discrete populations of aliens to aid officers in identifying those applications that may or may not warrant this act of grace.” Id. Practitioners should expect, accordingly, that the memorandum is not the agency’s last word on the operational implementation of the discretionary framework.

Fifth, the memorandum identifies the adverse factors officers should consider in the discretionary exercise. The list reads as follows: “violations of our immigration laws or the conditions of any immigration status held, current or previous instances of fraud or false testimony in dealings with USCIS or any government agency, whether an alien’s application for admission or parole violated the laws, regulations, and policies in place at the time, and any conduct of the alien after admission as a nonimmigrant or parolee inconsistent with the purpose of that nonimmigrant status or parole or with representations made to consular or DHS officers when applying for a visa, admission, or parole.” Id. at 5. The memorandum then adds that “[a]n alien’s failure to comply with the conditions of their nonimmigrant admission or parole and an alien’s failure to depart as expected are highly relevant to this analysis.” Id. The memorandum’s framing of these factors is presented as drawn from existing Policy Manual provisions: USCIS Policy Manual, vol. 1, pt. E, ch. 8 (Discretionary Analysis) and vol. 7, pt. A, ch. 10 (Legal Analysis and Use of Discretion). Id. at 5 n.19.3

Sixth, the memorandum identifies the categorical positive factors officers must weigh. The text reads: “Adjudicators must weigh all positive and negative factors, including family ties, immigration status and history, the applicant’s moral character, and any other relevant factor that bears on determining whether the alien warrants a favorable exercise of discretion.” Id. at 5–6. Three categorical phrases are enumerated: family ties, immigration status and history, and moral character. A catch-all phrase, “any other relevant factor,” follows. The memorandum cites Matter of Mendez-Moralez, 21 I&N Dec. 296, 300 (BIA 1996), for the balancing framework. Id. at 5 n.21.

That, in substance, is the operational footprint of the memorandum. The remainder of the document is doctrinal restatement.

What the Memorandum Does Not Decide

The memorandum’s silences are at least as important as its statements. We identify the most consequential of them below.

The memorandum does not use the phrase “preconceived intent.” The phrase is a term of art in the BIA case law, and it has been the focus of considerable practitioner attention in the wake of the memorandum. See Alexander J. Segal, USCIS and the 30/60 Day Rule, and the Effect of Preconceived Intent on Adjustment of Status. The memorandum, however, does not invoke the phrase. The most that can be said is that the memorandum’s reference to “conduct of the alien after admission as a nonimmigrant or parolee inconsistent with the purpose of that nonimmigrant status or parole or with representations made to consular or DHS officers when applying for a visa, admission, or parole” approaches the territory the BIA has historically treated under the preconceived-intent rubric. PM-602-0199, at 5. The memorandum does not endorse the older line of BIA preconceived-intent cases, does not abrogate Matter of Cavazos, 17 I&N Dec. 215, 217–18 (BIA 1980), or Matter of Ibrahim, 18 I&N Dec. 55, 57–58 (BIA 1981), and does not direct officers to find preconceived intent as a freestanding adverse factor.

The memorandum does not list “applying for AOS in a category where consular processing is available” as a standalone adverse factor. The premise of the memorandum, of course, is that the choice to adjust rather than to consular process is the procedural posture in which the discretionary inquiry takes place. But the operative adverse-factor list on page 5 does not contain “applying for AOS in a category where consular processing is available” as an item. Practitioner commentary that lists it as a discrete adverse factor is glossing the memorandum, not citing it.

The memorandum does not list “intent to circumvent the ordinary consular process” as a standalone adverse factor. The phrase, again, captures the memorandum’s rhetorical posture but does not appear as a discrete enumerated item in the Guidance section.

The memorandum does not identify “national interest considerations” or “economic benefit” as a positive factor. The phrase “national interest” appears once in the memorandum, in the Background and Analysis section, where it is used to frame the agency’s exercise of its own authority: “such authority must be exercised with the utmost caution and with a view towards national interests.” Id. at 2. The phrase is not used to describe a category of evidence an applicant may submit. The positive-factor list on pages 5 and 6 is limited to family ties, immigration status and history, and moral character, plus the catch-all. Practitioner commentary that lists “national interest considerations, including applications that present an economic benefit” as a positive factor under the memorandum is reading the memorandum through a lens drawn from National Interest Waiver doctrine, or from the cancellation-of-removal extreme-hardship framework, rather than citing the memorandum itself.

The memorandum does not elaborate the “family ties” category. It does not specify that the family ties must be to a U.S. citizen or lawful permanent resident relative, does not specify that separation from such a relative must cause hardship, and does not specify that the family ties must be of any particular duration. The memorandum’s “family ties” is bare categorical language. Practitioner commentary that elaborates family ties into “deep U.S. family ties (U.S. citizen or LPR spouse/children), particularly where separation would cause hardship” reads the cancellation-of-removal hardship analysis into a discretionary framework that does not invoke it.4

The memorandum does not address adjustment under INA § 209(b) (asylee adjustment) beyond the implicit recognition in footnote 24 that section 209(a)(2) is non-discretionary. The asylee population is therefore textually within the memorandum’s reach but is nowhere addressed by the memorandum in any specific way. See Alexander J. Segal, Adjusting Status as an Asylee. The memorandum likewise does not address VAWA self-petitioner adjustment, T visa adjustment, U visa adjustment, special immigrant adjustment under section 245(h), section 245(i) eligibility for grandfathered applicants, or section 245(k) safe-harbor adjustment for employment-based applicants. Each of those frameworks remains in place, governed by its own statute and its own regulations and Policy Manual chapters, and the memorandum does nothing to amend any of them.

The memorandum does not address advance parole or the question whether travel under advance parole constitutes a “departure” for purposes of the unlawful presence bars under INA § 212(a)(9)(B). It does not cite or address Matter of Arrabally and Yerrabally, 25 I&N Dec. 771 (BIA 2012), and it does not announce any change in the agency’s position on the question. Practitioners who have read the memorandum as foreshadowing such a change are reading something into the document that is not there. The document is silent.

The memorandum does not address the Child Status Protection Act. It does not address what happens to derivative beneficiaries when a principal’s I-485 is denied on discretionary grounds and the derivative ages out as a result. The CSPA aging-out concern that has surfaced in some practitioner commentary is a genuine concern and may well operate as a substantial equity in the discretionary balance under Mendez-Moralez, but it is not addressed by the memorandum.

The memorandum does not announce a change to the duration-of-status regime for F, J, or I visa holders. That change is a separate regulatory development being pursued through notice-and-comment rulemaking and is not before us in this memorandum.

The memorandum does not impose any new evidentiary requirements. It does not require applicants to submit a “discretionary factors memorandum” or a “statement of equities” or any other particular document. The recommendation that practitioners file a discretionary-factors memorandum with the I-485 is a sensible practitioner response to the new emphasis on the discretionary record, but it is not a memorandum requirement.

The memorandum does not raise the standard of proof for adjustment eligibility. The preponderance-of-the-evidence standard remains the operative standard for eligibility under section 245(a), as it was on May 20, 2026. See 7 USCIS-PM A.10; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010); Matter of E-M-, 20 I&N Dec. 77 (Comm’r 1989). The memorandum does not address the standard of proof at all, and on the principle that a policy memorandum cannot amend the regulations and decisional law from which the standard of proof derives, it could not raise the standard even if it tried.

The memorandum does not amend any chapter of the Policy Manual. The Policy Manual remains the operative text for the discretionary analysis, and the memorandum’s references to vol. 1, pt. E, ch. 8 and vol. 7, pt. A, ch. 10 are references to that operative text, not replacements of it. Practitioners building the discretionary record should be working against the Policy Manual chapters themselves, not against the memorandum’s compressed summary of them.

The Practitioner Glosses

The practitioner commentary that has appeared in the days following the memorandum’s issuance falls broadly into three categories.

The first category is the doctrinal restatement. Several alerts and pointers summarize the memorandum’s text accurately and add no operational gloss beyond what the memorandum provides. The most useful examples of this category restate the memorandum’s substance, identify the relevant Policy Manual chapters, and leave it at that.

The second category is the implementation gloss. The American Immigration Lawyers Association’s practice pointer is the most prominent example. AILA, Practice Pointer: New Adjustment of Status Policy Mandating a High Bar for a Positive Exercise of Discretion, AILA Doc. No. 26052602 (May 26, 2026). The pointer is, on the whole, a sound piece of practitioner work product. It surveys the memorandum, identifies the non-discretionary AOS categories drawn from footnote 24, lists adverse and positive factors, suggests client preparation strategies, and identifies a number of preexisting practice points that have become more important in the wake of the memorandum: the I-130/I-140 box-choice strategy and the I-824 mechanics, the unlawful presence bars and the waiver framework under INA § 212(a)(9)(B)(v), Matter of Arrabally and Yerrabally as it bears on advance parole, the impending elimination of duration of status for F, J, and I visa holders, and the CSPA aging-out concern. The pointer is, in short, a competent gathering of the operational landscape against which the memorandum will be implemented.

What the pointer does not consistently distinguish, however, is between propositions that flow from the memorandum and propositions that flow from preexisting doctrine, regulatory developments, and practitioner experience. The adverse-factor list in the pointer reads as if it were the memorandum’s list, but it is in part the pointer’s restatement of the memorandum and in part the pointer’s elaboration. The positive-factor list in the pointer includes “[n]ational interest considerations, including applications that present an economic benefit” as if it were a positive factor the memorandum identifies. The memorandum does not. The list also includes “[e]vidence of deep U.S. family ties (U.S. citizen or LPR spouse/children), particularly where separation would cause hardship” as if it were the memorandum’s family-ties standard. The memorandum’s “family ties” is categorical and unelaborated; the hardship gloss reads in a framework from cancellation of removal that the memorandum does not invoke. The result is a pointer that, while substantively useful, will give a reader the impression that the memorandum says somewhat more than it does.5

The third category is the implementation projection. Several alerts published by law firms in the days following the memorandum’s issuance predict how the memorandum will be implemented at the field-office level, what kinds of cases will be denied, and what kinds of submissions will be required. See, e.g., Phillips Lytle LLP, New USCIS Policy Memorandum Characterizes Adjustment of Status as an “Extraordinary Relief” Authorized as a Matter of Administrative Grace (May 2026); Goel & Anderson, LLC, USCIS Policy Memo on Adjustment of Status: What Employers and Employees Need to Know (May 2026); Harris Beach Murtha PLLC, USCIS Reframes Adjustment of Status as “Extraordinary” Discretionary Relief (May 2026); Wolfsdorf Rosenthal LLP, Employer Advisory: USCIS Policy Memorandum on Adjustment of Status Discretion (PM-602-0199) (May 2026); ProfVal, USCIS Policy Shift on Adjustment of Status (PM-602-0199): Implications for Visa Holders and Attorneys (May 2026). These projections are based on a combination of the memorandum’s text, the preexisting Policy Manual, agency practice in analogous discretionary frameworks, and the first practitioner reports from the field. They are useful, and we have drawn on several of them in the prior articles in this series. They are not, however, the memorandum, and the predictions they offer should be evaluated as predictions, not as text the memorandum has already adopted.

The most important practical implication of distinguishing these three categories is this. When a denial issues under the memorandum, the question on review will be whether the denial is consistent with the memorandum’s text, with the underlying Policy Manual, and with the regulations and statutes. It will not be whether the denial is consistent with the practitioner gloss. Counsel who has built a record against the memorandum’s text is better positioned than counsel who has built a record against the gloss.

Why the Close Reading Matters

Three operational implications follow from the close reading.

The first implication concerns the construction of the I-485 supporting submission. A submission that addresses the memorandum’s actual adverse-factor list and the memorandum’s actual positive-factor list is a tighter and more defensible submission than one that addresses the gloss. The submission should, for example, address “violations of our immigration laws or the conditions of any immigration status held” if any are in the record; address “current or previous instances of fraud or false testimony in dealings with USCIS or any government agency” if relevant; address “conduct of the alien after admission as a nonimmigrant or parolee inconsistent with the purpose of that nonimmigrant status or parole” if any could be characterized that way; and address “failure to depart as expected” if applicable. The submission’s positive-factor showing should be organized around family ties, immigration status and history, and moral character, plus any other relevant factors the practitioner judges to be on point. Each of those headings has a Policy Manual chapter behind it.

The second implication concerns interview preparation. The three categorical questions that have surfaced at the front end of field-office interviews in the days following the memorandum’s issuance, see Alexander J. Segal, Adjustment of Status After PM-602-0199: Early Field Reports and the New Line of Interview Questioning, are not the memorandum’s questions. The memorandum nowhere instructs officers to ask any particular question at the interview. The questions are operationalizations of the memorandum’s rhetorical posture rather than memorandum requirements. The applicant is entitled to be prepared for them, and counsel is entitled to address them in writing in advance of the interview, but the applicant is not under any memorandum obligation to answer the questions in any particular way, and a denial that turns on the applicant’s failure to satisfy the officer’s expectations as to the answers to questions the memorandum does not require should be vulnerable to challenge on that ground.

The third implication concerns litigation. If the memorandum is challenged, in whole or in part, the challenge will succeed or fail on the basis of what the memorandum says, what it does, and how it interacts with the statutes, regulations, and decisional law it purports to apply. The challenge will not succeed or fail on the basis of how the practitioner commentary has characterized the memorandum. Practitioners contemplating a challenge to a specific denial, whether on a petition for review under 8 U.S.C. § 1252(a)(2)(D) or under the Administrative Procedure Act in district court, should anchor the challenge in the memorandum’s text and in the agency’s deviation from it, not in the practitioner commentary’s framing of what the memorandum is supposed to require.6

Conclusion

PM-602-0199 is, on its face, a six-page document that contains relatively little operational direction beyond a one-page Guidance section, a doctrinal restatement, and a set of reservations of future agency authority. The document’s effect on adjustment practice will be substantial, not because the document itself imposes substantial new requirements, but because the document directs officers to a rigor of discretionary analysis that has been latent in the Policy Manual for some time and that the memorandum now brings to the foreground.

The practitioner commentary that has accumulated around the memorandum in the days following its issuance has, on the whole, performed a useful service in operationalizing the document. The commentary has identified the non-discretionary categories the memorandum implicitly excludes, has flagged the procedural traps that adjustment applicants now face, and has begun to develop a set of practice strategies for client engagement, file construction, and interview preparation. The commentary, however, has begun in places to substitute for the memorandum in the practitioner imagination, and practitioners who are about to file or to defend adjustment cases against the memorandum’s framework should be careful to keep the two distinct. The memorandum says what it says. The commentary says what the commentary says. The two are related but not identical, and the cases that will be litigated in the months ahead will turn on the distinction.

  1. The methodological observation that informs this article was prompted by an exchange among practitioners in which the question was raised whether several propositions widely attributed to the memorandum were in fact in the memorandum’s text. The exchange is the kind that the practitioner bar performs routinely in the wake of a significant agency action, and the author is grateful to the colleagues who pressed the close-reading point. The treatment in this article is the author’s own.
  2. Footnote 24 of PM-602-0199 identifies four non-discretionary AOS categories by statutory authority: INA § 209(a)(2) (refugee adjustment); Title II of Pub. L. 105-100, 111 Stat. 2160, 2193 (Nov. 19, 1997) (NACARA); Division A, Section 902 of Pub. L. 105-277, 112 Stat. 2681, 2681-538 (Oct. 21, 1998) (HRIFA); and Section 7611 of the FY2020 National Defense Authorization Act, Pub. L. 116-92, 113 Stat. 1198, 2309 (Dec. 20, 2019) (LRIF). PM-602-0199, at 6 n.24. The express identification of section 209(a)(2) confirms the asymmetry between refugee adjustment and asylee adjustment under section 209(b), the latter of which is discretionary by the express terms of the statute and is therefore within the memorandum’s reach. The asymmetry deserves its own analytical treatment and is the subject of a forthcoming article in this series.
  3. The Policy Manual chapters cited by the memorandum, vol. 1, pt. E, ch. 8 (Discretionary Analysis) and vol. 7, pt. A, ch. 10 (Legal Analysis and Use of Discretion), are the operative texts for the discretionary analysis and should be consulted directly in addition to the memorandum. Each chapter elaborates the family-ties, immigration-status-and-history, and moral-character framework with greater specificity than the memorandum supplies. The memorandum’s reference to those chapters at footnote 19 is a reference to the operative text, not a replacement of it.
  4. The point applies with particular force to the elaborations of the positive-factor list that have appeared in the practitioner commentary. The memorandum’s positive-factor list is short and categorical. Elaborations that import the cancellation-of-removal extreme-hardship framework, the National Interest Waiver framework, or other doctrinally distinct frameworks should be flagged as elaborations rather than presented as memorandum requirements. The doctrinal frameworks they import are real and useful in their own right; the concern is only with the attribution of those frameworks to the memorandum.
  5. Two specific practitioner-commentary items deserve flagging. First, the suggestion that the memorandum’s adverse-factor list includes “[a]pplying for AOS in a category where consular processing is available” as a discrete enumerated factor, while a faithful summary of the memorandum’s framing, is not a transcription of the memorandum’s adverse-factor list, which addresses immigration-law violations, fraud or false testimony, application-of-admission violations, and post-admission conduct inconsistent with status. Second, the suggestion that the memorandum’s positive-factor list includes “national interest considerations” as a discrete category is not supported by the memorandum’s text, which uses the phrase “national interests” only in the Background and Analysis section’s framing of the agency’s exercise of its own authority. PM-602-0199, at 2.
  6. The author has noted elsewhere that the discretionary record built at the agency level is also the foundation of any later challenge. See Alexander J. Segal, Discretion Is Not a Shield for Legal Error in Adjustment of Status Adjudications, at n.8 (“Casework at the agency level and litigation in the federal courts are not separate tracks; they are the same track, viewed from different distances.”). The same point applies here: the close reading of the memorandum is not an academic exercise; it is the foundation of any record-building exercise that will need to engage the memorandum’s actual provisions in a denial review or in a subsequent challenge. A record built against the memorandum’s actual text will support a challenge under Guerrero-Lasprilla v. Barr, 589 U.S. 221, 225 (2020), and Wilkinson v. Garland, 601 U.S. 209, 217–25 (2024), where applicable, and an APA challenge under Pinho v. Gonzales, 432 F.3d 193, 200–04 (3d Cir. 2005), where applicable. A record built against the practitioner gloss will support neither.