Adjustment of Status as a Matter of Discretion and Extraordinary Relief: How USCIS’s New Policy Memo Applies to AOS Filings
USCIS recently issued a new Policy Memorandum, 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.”
The title of USCIS’s new memo says a lot. By calling adjustment of status a matter of “discretion,” “administrative grace,” and “extraordinary relief,” USCIS is signaling that Form I-485 adjudications may no longer be treated as a largely technical eligibility review.
The memo does not eliminate adjustment of status. It does not require all applicants to consular process. It does not create a new statutory bar to filing Form I-485. But it does emphasize that, in most adjustment cases, eligibility alone is not enough. Even where an applicant satisfies the statutory and regulatory requirements, USCIS will determine whether the applicant deserves a favorable exercise of discretion.
For applicants, the takeaway is simple: an I-485 filing should no longer be treated as just a form package. In most cases, it is now advisable to affirmatively document why the applicant merits adjustment of status, including lawful status history, authorized employment, tax compliance, family or community ties, professional contributions, absence of violations, and other positive equities.
What USCIS Is Really Saying
The new USCIS memo frames adjustment of status as an “extraordinary” form of relief because it permits an applicant to become a lawful permanent resident from within the United States instead of applying for an immigrant visa through a U.S. consulate abroad.
First, applicants must meet the statutory and regulatory eligibility requirements. These include, among other things, proper admission or parole, immigrant visa availability, admissibility, and absence of applicable adjustment bars.
Second, because adjustment is discretionary in most categories, the applicant must show that the case warrants favorable discretion.
USCIS also emphasizes that many nonimmigrants and parolees are admitted temporarily and are generally expected to depart when the purpose of their admission or parole has ended. As a result, USCIS may treat certain facts as negative discretionary factors, including failure to maintain status, unauthorized employment, fraud or misrepresentation, failure to depart when required, or conduct inconsistent with the original purpose of admission.
Eligibility Still Matters — But It Is Not the End of the Analysis
The USCIS Policy Manual makes clear that discretionary review is a separate part of adjudication.
In an adjustment case, the officer should first determine whether the applicant meets the threshold eligibility requirements. For example, the officer should determine whether the applicant was inspected and admitted or paroled, is eligible to receive an immigrant visa, is admissible to the United States, and has an immigrant visa immediately available, where required.
If the applicant does not meet the statutory or regulatory requirements, discretion cannot fix the problem. Favorable equities do not make an ineligible applicant eligible.
But if the applicant does meet the requirements, USCIS then considers whether the applicant merits adjustment as a matter of discretion.
For most adjustment categories — including family-based, employment-based, diversity visa, EB-4, T, U, asylee, Cuban Adjustment Act, and certain parolee-based cases — adjustment involves discretion.
Some categories, including refugee adjustment, NACARA, HRIFA, and LRIF, are identified as non-discretionary, meaning USCIS must approve if the applicant satisfies the applicable requirements.
The Key Protection for Clean Cases: No Negative Factors
The most important language in the Policy Manual appears in Volume 1, Part E, Chapter 8, under “Lack of Negative Factors”:
“An alien’s threshold eligibility for the benefit sought is generally also a positive factor. Therefore, absent any negative factors, USCIS ordinarily exercises discretion positively. Generally, if there are no negative factors to weigh against that positive factor, denial of the benefit would be an inappropriate use of discretion.”
This language matters.
It means that while adjustment is discretionary, discretion is not unlimited. USCIS cannot simply say, “Adjustment is discretionary, therefore we deny.” The officer must identify actual negative factors, weigh them against positive factors, and explain why the negative factors outweigh the positive ones.
In a clean adjustment case, threshold eligibility itself is a positive factor. If there are no negative factors to weigh against that positive factor, the Policy Manual says that USCIS ordinarily exercises discretion positively. More importantly, it says that denial in that situation would generally be an inappropriate use of discretion.
This provides a strong argument against discretionary denials in clean I-485 cases. If an applicant has maintained lawful status, worked only with authorization, paid taxes, has no criminal history, has no fraud or misrepresentation issues, has no public safety or national security concerns, and otherwise meets the statutory requirements, USCIS should ordinarily approve the case as a favorable exercise of discretion.
The argument becomes even stronger if the filing affirmatively documents positive equities, such as U.S. education, stable employment, professional accomplishments, family or community ties, tax compliance, and hardship or disruption that would result from consular processing.
What Helps an Applicant?
The Policy Manual provides a non-exhaustive list of positive factors that officers may consider when deciding whether to approve adjustment as a matter of discretion. These may include:
Threshold eligibility for adjustment of status.
Eligibility itself is generally a positive factor. In other words, an applicant who meets the basic legal requirements for adjustment is not starting from zero.Family ties in the United States.
USCIS may consider close family relationships, the nature of those relationships, and hardship to the applicant or close relatives if adjustment is denied.Community ties.
Evidence of community involvement, stability, and meaningful connections in the United States may support favorable discretion.Lawful residence in the United States.
Length of lawful residence, the status held during that residence, and the applicant’s conduct while in the United States may all be relevant.Compliance with immigration laws.
Maintaining lawful status, working only with authorization, timely filing applications, and complying with the terms of admission are important positive factors.Stable employment history.
USCIS may consider the type, length, and stability of employment. This is especially important in employment-based adjustment cases.Education, training, and specialized skills.
U.S.-based education, professional training, specialized skills, and future earning potential may support a favorable exercise of discretion.Property, business, or investment ties.
Ownership of property, business involvement, investment activity, or other economic ties in the United States may be favorable.Tax compliance.
A history of filing and paying taxes supports good moral character and respect for U.S. law.Good moral character and community standing.
USCIS may consider lack of criminal history, good reputation, respect for law and order, cooperation with law enforcement, rehabilitation where relevant, and community service.Professional value to the United States.
For EB-1, EB-2 NIW, EB-2, and EB-3 applicants, the underlying immigrant petition may already document the applicant’s professional achievements, skills, and contributions.Absence of significant negative factors.
A clean record—no status violations, unauthorized employment, fraud, criminal issues, tax problems, or public safety concerns—may itself support favorable discretion.
What Can Hurt an Applicant?
The Policy Manual also identifies negative factors that may weigh against favorable discretion. These may include:
Immigration violations.
This may include failure to maintain status, violation of the terms of nonimmigrant status, unlawful presence, or other noncompliance with immigration laws.Unauthorized employment.
Even where unauthorized employment does not create a statutory bar to adjustment, USCIS may still consider it as a negative discretionary factor.Fraud, false testimony, or misrepresentation.
Prior false statements, fraud, or misrepresentations to USCIS or any government agency may weigh heavily against favorable discretion.Conduct inconsistent with the purpose of admission.
USCIS may consider whether the applicant engaged in conduct inconsistent with the nonimmigrant status or representations made when applying for a visa, admission, or parole.Unexecuted removal, deportation, or exclusion orders.
A prior removal-related order may be a significant adverse factor, even if it does not independently prevent USCIS from adjudicating the application.Criminal history.
USCIS may consider the nature, seriousness, recency, and pattern of criminal conduct, as well as any evidence of rehabilitation.Public safety or national security concerns.
These are significant negative factors and may heavily affect the discretionary analysis.Failure to comply with tax obligations.
Failure to file or pay taxes may weigh against the applicant’s character and respect for law.Failure to pay child support or comply with civil court orders.
USCIS may consider these as negative indicators of responsibility and character.Long-term unemployment or underemployment.
Depending on the facts, a history of unemployment or underemployment may be considered negatively.Income from illegal activity.
Employment or income from illegal sources may weigh heavily against favorable discretion.Country-specific vetting or screening concerns.
USCIS may consider country-specific facts in individual cases where those facts affect identity verification, vetting, or security review.Support for anti-American or terrorist organizations or ideologies.
USCIS treats endorsement, promotion, support, or espousal of anti-American views or terrorist organizations, including antisemitic terrorist organizations or ideologies, as an overwhelmingly negative factor.Other negative indicators of character or undesirability as an LPR.
The list is not exhaustive. USCIS may consider any relevant facts bearing on whether the applicant warrants permanent residence as a matter of discretion.
How USCIS Must Weigh Positive and Negative Factors
Discretion does not mean USCIS can deny an adjustment application based on vague concerns, speculation, or a general feeling that the applicant should have used consular processing instead. The Policy Manual requires a reasoned, individualized review of the evidence.
Officers must consider the totality of the circumstances. There is no point system, and officers are not supposed to assign numerical values to each factor. Instead, they must look at each positive and negative factor separately, then evaluate the case as a whole.
This means the analysis is qualitative. A few strong positive factors may outweigh several weaker negative factors. At the same time, one serious negative factor — such as fraud, a significant status violation, criminal conduct, or a public safety concern — may outweigh multiple positive factors.
The more serious the negative facts, the stronger the applicant’s positive equities may need to be. The Policy Manual refers to this as the need for “unusual or outstanding equities” in cases involving serious adverse factors. But that standard should not apply to every case. It becomes relevant when there is something meaningful to overcome.
That distinction matters. In a clean case, where the applicant meets the legal requirements and has no adverse facts, the applicant should not need extraordinary equities just to overcome nothing. In those cases, the Policy Manual’s own language supports favorable discretion.
What This Means for I-485 Filings
Useful evidence may include approved reinstatements, approved changes or extensions of status, proof of authorized employment, tax transcripts, employer letters, community letters, family hardship evidence, and documentation of the applicant’s professional or national-interest value.
Prior F-1 reinstatements are a good example. A reinstatement should not automatically be treated as fatal, especially if USCIS ultimately approved it. In that situation, the record should present a clear immigration timeline, include the USCIS approval notice, and explain that the applicant used the proper legal process to restore or confirm compliance.
For employment-based applicants, especially EB-1 and EB-2 NIW applicants, many positive equities may already be documented in the immigrant petition. But the I-485 filing should not assume that the officer will connect those facts to the discretionary analysis. It may be useful to include a concise section tying the applicant’s work, education, lawful status, authorized employment, tax compliance, and U.S. contributions directly to favorable discretion.
The practical point is simple: the I-485 should no longer be treated as a bare form package. It should affirmatively show why the applicant is not only eligible, but also deserving of adjustment as a matter of discretion.
Frequently Asked Questions
Does the new USCIS memo mean adjustment of status is no longer available?
No. Adjustment of status is still available. The memo does not say that everyone must leave the United States and consular process. It simply reminds applicants that, in most cases, adjustment of status is discretionary. That means USCIS may look not only at whether the applicant qualifies, but also whether the applicant deserves approval as a matter of discretion.
If I meet all I-485 requirements, does USCIS have to approve my case?
Not always. In most adjustment categories, meeting the basic legal requirements is necessary, but it may not be the end of the analysis. USCIS can also consider whether the case should be approved as a favorable exercise of discretion.
That said, the Policy Manual contains helpful language: eligibility itself is generally a positive factor.
If there are no negative factors, can USCIS still deny my adjustment case?
The Policy Manual gives a strong argument that it generally should not.
It says that when an applicant meets the threshold requirements and there are no negative factors, USCIS ordinarily exercises discretion favorably. It also says that if there are no negative factors to weigh against eligibility, denial would generally be an inappropriate use of discretion.
In plain English: if the case is clean, USCIS should not deny it just because adjustment is discretionary.
What helps an adjustment applicant?
Positive factors may include:
meeting the basic I-485 eligibility requirements;
maintaining lawful immigration status;
working only with authorization;
paying taxes;
stable employment;
U.S. education or professional training;
specialized skills;
family ties in the United States;
community ties;
hardship if adjustment is denied;
property, business, or investment ties;
no criminal history;
good moral character; and
professional contributions to the United States.
For employment-based applicants, the approved immigrant petition may already show many of these positive factors, especially professional achievements, skills, and value to the United States.
What can hurt an adjustment applicant?
Negative factors may include:
status violations;
unauthorized employment;
fraud or false testimony;
misrepresentation to USCIS or another government agency;
criminal history;
public safety or national security concerns;
failure to pay taxes;
failure to pay child support;
failure to comply with court orders;
income from illegal activity;
long-term unemployment or underemployment; and
conduct inconsistent with the purpose of the applicant’s visa, admission, or parole.
The important point is that USCIS must look at the actual facts of the case. Discretion does not mean the officer can deny based on vague concerns or speculation.
Is unauthorized employment still a problem if it does not legally bar adjustment?
Yes. Even if unauthorized employment does not create a statutory bar in a particular case, USCIS may still consider it as a negative factor in the discretionary analysis. In other words, “not a bar” does not always mean “irrelevant.”
Does this affect employment-based adjustment cases?
Employment-based adjustment remains available. But applicants may benefit from clearly documenting positive factors, especially lawful status history, authorized employment, tax compliance, professional accomplishments, and lack of adverse immigration or criminal history.
Does this affect EB-1 or EB-2 NIW applicants differently?
The memo does not create a separate rule for EB-1 or EB-2 NIW applicants.
However, EB-1 and EB-2 NIW applicants often already have strong positive factors in the immigrant petition, such as professional achievements, expertise, publications, awards, business accomplishments, or national-interest contributions. For the I-485, it may be helpful to connect those facts directly to the discretionary analysis.
Does maintaining H-1B, L-1, or another dual-intent status help?
Yes. Maintaining lawful dual-intent status can help.
The memo specifically recognizes that applying for adjustment is not inconsistent with maintaining a dual-intent nonimmigrant status. However, USCIS also says that dual-intent status alone does not automatically guarantee favorable discretion. It should be presented together with other positive factors.
What about F-1 students or other applicants in non-dual-intent status?
These cases may require more careful presentation, especially if there are facts suggesting the applicant acted inconsistently with the original purpose of the visa.
However, a clean record can still be very helpful. Maintaining status, working only with authorization, making academic progress, filing taxes, and submitting timely applications are all positive facts.
Are prior F-1 reinstatements automatically negative?
Not necessarily.
A prior reinstatement should usually be explained, but it is not automatically fatal. If USCIS approved the reinstatement, that approval can help show that the applicant used the proper legal process to correct or restore status.
The best approach is to present a clear immigration timeline, include the USCIS approval notices, and explain the facts accurately.
What evidence may help?
Helpful evidence may include:
I-94 records;
status approval notices;
EAD cards;
pay stubs;
W-2s;
tax transcripts;
employer verification letters;
diplomas or transcripts;
professional licenses;
proof of community involvement;
family documents;
lease, mortgage, or property records;
business ownership documents; and
a short statement explaining hardship or disruption if adjustment is denied.
Should applicants avoid adjustment and choose consular processing instead?
The memo emphasizes consular processing as the ordinary immigrant visa route, but it does not require every applicant to use consular processing. Whether adjustment or consular processing is better depends on the applicant’s immigration history, visa category, admissibility issues, travel risks, family situation, and case-specific facts.
What should applicants do now?
Applicants should focus on the basics:
maintain lawful status whenever possible;
avoid unauthorized employment;
comply with tax obligations;
keep immigration records organized;
avoid travel or filing decisions that create unnecessary risk; and
prepare I-485 filings with a clearer presentation of positive factors.
Cases with prior violations, reinstatements, gaps, or other complications should be reviewed carefully before filing.
For questions about how this policy may affect your adjustment of status filing, contact our office to schedule a consultation.