Introduction

In a recent article on this site, we examined U.S. Citizenship and Immigration Services Policy Memorandum PM-602-0199, 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, issued May 21, 2026. The principal argument of that article was that the memo, although rhetorically aggressive, did not alter the two-step structure of adjustment under section 245 of the Immigration and Nationality Act, did not relocate statutory eligibility into the discretionary basket, and could not be used to insulate legal error from judicial or administrative review. See Alexander J. Segal, Discretion Is Not a Shield for Legal Error in Adjustment of Status Adjudications.1

The first practitioner reports from field office interviews conducted in the days following issuance of the memo are now beginning to circulate. They confirm both halves of that thesis. They confirm that officers are implementing the memo at the interview itself, with a new and recognizable line of questioning directed at the very fact that the applicant has come to USCIS rather than to a consular officer. And they confirm that the questioning, although new in form, reaches for legal and factual ground the statute itself has already mapped. The questions are not impossible questions. In most cases, the statute supplies the framework and frequently supplies the answer.

This article describes the pattern of questioning that has begun to emerge, examines the legal architecture against which each question must be read, and sets out a structured approach to client preparation and to the affirmative interview record. It assumes familiarity with the prior article on this site and concentrates on the new operational dimension.2

The Pattern of Questioning

According to attorney reports relayed within the practitioner bar over the past several days, USCIS officers conducting adjustment interviews under PM-602-0199 have begun to open their interviews with three categorical questions before turning to the substance of the case. In a marriage-based interview held at a West Coast field office during the week the memo issued, involving an applicant who entered the United States as a teenager on a B-2 visa more than a decade ago and overstayed continuously thereafter, the interviewing officer is reported to have begun the proceeding with these three questions, in this order:

  • First, why did you apply for adjustment of status instead of obtaining an immigrant visa abroad through consular processing?
  • Second, why did you not return to your country when your authorized stay expired?
  • Third, what factors prevent you from pursuing the visa process in your country of nationality now?

The questions are, on their face, an operationalization of PM-602-0199’s central rhetorical move. They treat the consular process as the default and ask the applicant to justify, in the officer’s presence, the departure from that default. Practitioners have reported similar questioning at other field offices in the days since. The pattern appears to be national rather than confined to a single field office or a single officer.

Several features of the pattern bear comment at the outset.

The questioning is conducted at the front end of the interview. It is positioned before the officer reaches the marriage, the documents, or any other substantive part of the adjudication. Whatever the officer’s intention, this positioning carries an implicit message: the burden of justifying the choice of forum precedes the burden of establishing the merits.

The questioning is open-ended. It is not framed as a request for documentation or for the production of evidence of a particular fact. It invites narrative answers from applicants who are likely to be nervous, who often speak English imperfectly, and who may not have understood that they were going to be asked to defend the procedural choice their attorney made on their behalf.

The questioning calls on the applicant rather than on counsel. Practitioners cannot answer for clients in interviews. The applicant must answer. That makes preparation, not advocacy on the day, the operative response. Each of the three questions deserves separate analysis.

Question One: Why Did You Apply for Adjustment Rather Than Pursue a Visa Abroad?

The first question presupposes that consular processing is, in fact, available to the applicant. For a substantial portion of the adjustment population, that premise is wrong as a matter of law.

Section 212(a)(9)(B) of the INA imposes a three-year bar of inadmissibility on an alien who departs the United States after accruing more than 180 days of unlawful presence, and a ten-year bar on an alien who departs after accruing one year or more of unlawful presence. See Alexander J. Segal, Unlawful Presence in the United States. An alien who has accrued the threshold unlawful presence and who departs the United States to attempt consular processing thereby triggers the inadmissibility bar. The bar may be waivable under section 212(a)(9)(B)(v) for an applicant who is the beneficiary of a qualifying immigrant petition and who can establish extreme hardship to a qualifying U.S. citizen or lawful permanent resident relative, but the waiver is itself discretionary and the extreme hardship standard is not low. See Alexander J. Segal, Provisional Unlawful Presence Waivers.

For the immediate-relative applicant who has accrued years of unlawful presence in the United States, in other words, consular processing is not the simple alternative the memo’s framing suggests. It is a procedure that triggers inadmissibility on departure and requires a separate, discretionary waiver to be made whole. The Provisional Unlawful Presence Waiver process, codified at 8 C.F.R. § 212.7(e), was designed by USCIS itself precisely to mitigate the harshness of this dynamic, but it does not eliminate the structural cost of departure.

The point is not that consular processing is impossible for such applicants. It is that consular processing is, for many of them, a high-cost route that requires the favorable exercise of administrative discretion in the very form, the I-601A waiver, that PM-602-0199 elsewhere endorses as the ordinary course. The first question’s premise, that adjustment is the favored path while consular processing is the normal one, collapses when the applicant is subject to the unlawful presence bars and would face the ten-year bar on departure.

For the marriage-based applicant who is the immediate relative of a U.S. citizen, the analysis is further sharpened by the architecture of section 245 itself. Congress expressly preserved access to adjustment for immediate relatives notwithstanding most of the bars set forth in section 245(c). See INA § 245(c); Adjustment of Immigration Status. The statute itself signals that Congress contemplated this route as the principal one for the immediate-relative population that has accrued unlawful presence. PM-602-0199’s framing of consular processing as the ordinary course for that population is in tension with the statute Congress wrote.

The answer to the first question, then, can and in many cases should be framed in legal terms. The applicant who is subject to the unlawful presence bars should say so. The applicant who is an immediate relative entitled by statute to adjust, notwithstanding unlawful status, should say so. Equities such as family separation, country conditions, and other personal hardships have their place in the discretionary balance and should be stated honestly, but the central answer is statutory: the applicant is using the route Congress provided for the applicant’s circumstance.

Question Two: Why Did You Not Depart When Your Authorized Stay Expired?

The second question is more difficult, both legally and as a matter of interview management, because it invites the applicant to characterize his or her own past conduct in a setting in which any answer can be reframed as an admission.

The strict legal point comes first. The premise of the question, that the applicant should have departed when the period of authorized stay expired, is not a freestanding requirement of section 245(a). Section 245(a) makes an adjustment available to an alien who was inspected and admitted or paroled into the United States and who meets the eligibility criteria. It does not condition adjustment on the applicant having departed upon expiration of status. The various bars in section 245(c) address overstay and unauthorized employment, with statutory exceptions of significance, including the immediate-relative exception that exempts most overstays from the bars in section 245(c)(2). See Alexander J. Segal, Exemptions from Adjustment of Status Bars for Certain Employment-Based Applications (discussing the section 245(k) safe harbor and related architecture). The fact of overstay alone, in other words, is not necessarily a category-defeating fact for the applicant. The question’s implicit premise, that the applicant should have departed and now must explain why he did not, is not a statutory requirement of the inquiry the officer is conducting.3

The discretionary point comes second. PM-602-0199 does, expressly, instruct officers to weigh an alien’s failure to comply with the conditions of nonimmigrant admission or parole, and an alien’s failure to depart as expected, as relevant to the discretionary determination. PM-602-0199, at 5. The applicant’s answer therefore has practical weight at the discretionary stage, even when it does not affect statutory eligibility. The answer must address the discretionary frame without conceding more than the law requires.

The strongest answers are factual and human and tied to the applicant’s circumstances. Many applicants who entered as minors did not make the decision to remain. Many applicants enrolled in school, formed family ties, or had concrete fears of return to a country with deteriorating conditions. Some applicants relied on their parents’ decisions; others adjusted to life in the United States during years in which return became progressively more difficult and progressively less compatible with the family they had built here. These answers belong in the record. They are the raw material of the Mendez-Moralez balancing exercise. See Matter of Mendez-Moralez, 21 I&N Dec. 296, 300 (BIA 1996); Alexander J. Segal, Matter of Arai, 13 I&N Dec. 494 (BIA 1970): Weighing Adverse Factors and Equities in AOS Adjudication.

The poorest answers are the ones that gesture at no reason at all, or that present the failure to depart as a matter of personal preference unconnected to any equity. “I wanted to stay here” without more is not an answer; it is a concession. The applicant who entered the United States as a sixteen-year-old, however, and who explains that he was a high school student dependent on his parents, who had been told that the country was dangerous, who built a life around schooling and work and a U.S. citizen partner over the next fourteen years, has provided an answer of a very different kind.

The applicant should not be prepared to confess to an immigration violation in the abstract, in officer-friendly language, simply because the officer’s question invites it. The applicant should be prepared to describe his circumstances factually and to ground the description in equities that the statute and the precedents recognize. Counsel should be alert to the distinction between a candid factual answer and a self-incriminating characterization.

Question Three: What Factors Prevent You From Pursuing the Visa Process in Your Country Now?

The third question is the most fruitful of the three for the well-prepared applicant, because the law itself supplies a number of recognized answers and because the question is, in effect, an invitation to articulate them.

The most common legal answer is the ten-year bar of inadmissibility under section 212(a)(9)(B)(i)(II). An applicant who has accrued one year or more of unlawful presence and who departs to attend a consular interview triggers the ten-year bar, and unless a waiver is granted, the applicant will be separated from family in the United States for a decade. This is not a tactical answer; it is the statute. See INA § 212(a)(9)(B)(i)(II); Alexander J. Segal, Provisional Unlawful Presence Waivers.

Other recognized answers include country conditions, particularly for nationals of countries with active armed conflict, generalized violence, or organized criminal activity that the applicant credibly fears; the absence of a functioning consulate in the country of nationality, which has affected nationals of certain countries during periods of suspended consular services; the existence of qualifying U.S. citizen or lawful permanent resident relatives whose hardship would qualify the applicant for a waiver but who depend on the applicant’s continued presence to maintain stability; and the practical reality that consular wait times in many posts run into multiple years even where no inadmissibility bar applies. As practitioners have observed elsewhere on this site, recent reductions in consular workforce have lengthened those wait times appreciably.

For the applicant who has a bona fide answer to this question, the question is the easiest of the three. The harder cases are the ones in which the answer is genuinely a matter of equity rather than of statute. Those answers are not weaker. They are simply pitched at the discretionary stage and should be developed there, with documentary support where possible.

The Officer’s Role and Its Limits

A separate concern raised in the practitioner discussion that prompted this article deserves to be addressed directly. Several attorneys have reported that, during the new line of questioning, officers have suggested to applicants that they consider withdrawing the I-485 and pursuing consular processing instead.

The officer’s role is to adjudicate the application that has been filed. The officer is not the applicant’s attorney. The officer has no role in counseling a represented applicant on a procedural choice that has already been made and embodied in a filed application. The applicant has counsel. The applicant has chosen a path. The officer’s task is to adjudicate that path on the merits.

Practitioners should be alert to the line between an officer’s legitimate inquiry into the Mendez-Moralez balancing factors and an officer’s suggestion that the applicant abandon the procedural posture of the case. The former is permitted by PM-602-0199 and by the existing Policy Manual. The latter is not. Counsel of record may, and should, interject when the line is crossed, courteously but on the record, to protect the application and the attorney-client relationship.

The proper response is for the applicant to answer the questions and for counsel to monitor the questioning to ensure it does not slide into solicitation of withdrawal. If the officer suggests withdrawal, counsel should respectfully indicate that the applicant has chosen the path of adjustment, that the application is properly before the agency, and that the applicant requests adjudication on the merits. A respectful statement to that effect, made on the record, preserves the issue and signals to the officer that the procedural choice will be defended.4

Preparing the Client for the New Interview

The preparatory steps follow from the analysis above.

Every adjustment client should now be prepared, in advance and in writing, to answer the three categorical questions described in this article. The preparation should not consist of memorized scripts. It should consist of a clear factual narrative tied, where possible, to recognized legal categories.

For the first question, the applicant should be ready to explain in plain language why adjustment is the appropriate route given his or her circumstances. If the applicant is subject to the unlawful presence bars, the applicant should be able to articulate that fact without legal jargon. If the applicant is an immediate relative entitled to adjust notwithstanding unlawful status, the applicant should be able to say that, again in plain language, and counsel should have laid the groundwork in the supporting submission.

For the second question, the applicant should be ready to describe the circumstances of the overstay factually and to tie the description to the equities the Mendez-Moralez framework recognizes: age at entry, dependence on parents, schooling, family ties built in the United States, work history, country conditions, and the absence of a clean break point at which departure was feasible. The applicant should not be prepared to volunteer a categorical admission that the failure to depart was an immigration violation, language which is for the agency, not the applicant, to apply.

For the third question, the applicant should be ready to articulate the obstacles to consular processing, including, where applicable, the unlawful presence bars, country conditions, separation from a qualifying relative, and consular delays. Where the applicant has filed an I-601A is pending or contemplated, that fact should be mentioned, and counsel should be prepared to provide documentation.

In each case, the supporting submission filed with the I-485 should anticipate these questions and address them in writing in advance. A discretionary factors memorandum or written statement of equities, accompanying the I-485, gives the officer a baseline against which to test the applicant’s answers and gives counsel a written record that anticipated the line of questioning rather than scrambling to meet it on the day. See Alexander J. Segal, USCIS and the 30/60 Day Rule, and the Effect of Preconceived Intent on Adjustment of Status (discussing the related framework of preconceived intent and its evidentiary requirements).

A Word on the Practitioner Reaction

The practitioner reaction to PM-602-0199 has, in the days since issuance, fallen into two camps. The first treats the memo as a watershed that requires fundamental rethinking of adjustment practice. The second treats it as a scare tactic that should not displace the routine filing of adjustment cases. The position taken in this series of articles is closer to the second than to the first, but it does not coincide with either.

Adjustment of status is, indeed, grounded in statute, and no policy memorandum can override a statute. That is the principal substantive point. But the recognition that the underlying eligibility framework is statutory does not mean that the memo can be ignored at the operational level. The memo is now driving the interview, and the interview is where most adjustment cases are decided. Practitioners who file as usual without preparing their clients for the new line of questioning will see a higher rate of denials based on the discretionary frame the memo has installed. Those denials may, in many cases, be vulnerable to challenge on the grounds the prior article in this series sets out. But administrative challenge is a poor substitute for getting the case granted at the interview.5

The middle path is to continue filing well-supported adjustment applications, with full attention to the discretionary record, and to prepare each client to meet the new line of questioning with answers tied, where possible, to the statutory framework the questioning ignores. Cases that are genuinely marginal on the discretionary balance should be filed with eyes open and with the client informed of the increased risk. Cases that are strong on the equities and supported by statutory architecture should be filed with confidence.

Conclusion

PM-602-0199 has moved from policy text to interview practice. The line of questioning that has appeared at field office interviews in the days since the memo issued is the operational arm of the memo’s discretionary framing. It is also, in significant part, a set of questions for which the statute supplies the structure and frequently supplies the answer. The unlawful presence bars exist because Congress recognized that many applicants present in the United States in unlawful status cannot, in fact, depart and reenter through consular processing without years of separation. The waiver provisions exist for the same reason. The immediate-relative carveouts in section 245(c) exist for the same reason. Each of these statutory features is, in effect, a congressional answer to the very question the officer is now asking at the front end of the interview.

The professional task is not to resist the questioning, which is unlikely to be productive, but to prepare clients to meet it on its merits and to build the supporting submission so that the answers given at the interview are corroborated by the record. The first article in this series argued that PM-602-0199 had changed the tone of adjustment adjudication and not the law. The early reports from the field do nothing to disturb that conclusion. They reinforce it. The tone of the interview has changed. The legal architecture has not. The work of meeting the new tone, with rigor, courtesy, and a complete record, begins with each new client engagement.

  1. The first article in this series remains the analytical reference point for the legal architecture summarized briefly here. Practitioners are referred to it for the discussion of Patel v. Garland, 596 U.S. 328 (2022), Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020), Wilkinson v. Garland, 601 U.S. 209 (2024), and Bouarfa v. Mayorkas, 604 U.S. _ (2024), and for the broader thesis that PM-602-0199 cannot, by rhetorical move, collapse the safe harbor preserved by the line of cases distinguishing pure factual findings from mixed questions of law and fact.
  2. The descriptions of interview questioning in this article are derived from practitioner reports relayed within the immigration bar in the days immediately following issuance of the memo. The descriptions have been generalized; no individual attorney is identified, and no client is identifiable from the description provided. The author is grateful to colleagues who shared their observations on a confidential basis.
  3. PM-602-0199 leaves the dual-intent exception undisturbed. See PM-602-0199, at 5 (“USCIS reminds its officers that applying for adjustment of status is not inconsistent with simultaneously maintaining nonimmigrant status in a category with dual intent.”). For applicants whose nonimmigrant status carries dual intent, the second question described in the text above is, in important measure, defused by the statute. The applicant who is in H-1B or L-1 status and seeks adjustment is not failing to depart in any sense Congress considered adverse.
  4. Counsel should also bear in mind that an officer’s solicitation of withdrawal, if accepted, may have substantive consequences for the client beyond the loss of the current application. A withdrawn adjustment application may foreclose certain interim benefits, may restart the process from the beginning, and, depending on the timing, may expose the client to unlawful presence accruals or to enforcement action. The decision to withdraw should be made deliberately and with the client’s full understanding, not in response to a suggestion at the interview window.
  5. There is, of course, an additional consideration. Each new file that is built with care, with a complete discretionary record, and with anticipation of the questioning described in this article also builds, incidentally, the record on which any future class or representative challenge to PM-602-0199’s implementation could rest. 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 work of building the record at the interview is also the work of building the record for review.