Most people approach a green card application the way they'd approach renewing a driver's license. You gather the documents, fill out the forms, meet the requirements, submit the paperwork — and you get approved. That's how a rules-based government process is supposed to work. You do your part, the agency does its part.
That's not quite how adjustment of status works. And the new USCIS policy memo issued in May 2026 has turned that abstract legal reality into a very practical one that affects how every application needs to be built right now.
The word at the center of all of it is discretion. It's a legal term, and it matters more than most applicants realize — because it's the gap between being eligible for a green card and actually getting one.
We handle family-based immigration cases nationally. This article is the legal explainer in our PM-602-0199 series — what discretion actually is, where it comes from, and what it means for your application today.
What "Discretionary" Means in Immigration Law
The authority for adjustment of status comes from INA § 245(a). Here is the operative language: the Secretary of Homeland Security may adjust the status of an eligible applicant.
May — not shall. That one word is the entire legal foundation of discretion in this context.
When a law says an agency "shall" do something upon certain conditions being met, the agency is required to act. There's no judgment involved. You qualify, you get it.
When a law says an agency "may" do something, the agency has authority to make a judgment call. You can qualify and still not get it — if the agency decides, in its discretion, that you shouldn't.
That gap between eligible and approved has always existed in adjustment of status law. USCIS has always had the legal authority to deny a technically eligible application if it determined the applicant didn't merit the benefit. Most applicants never knew this, because for many years, that authority was rarely exercised in any meaningful way. If you were eligible and your record was clean, you got approved. Discretion was nominally present but practically invisible.
PM-602-0199 changed that. It didn't create new legal authority — it told officers to actually use the authority they already had.
Where Discretion Comes From: The Legal History
The memo's legal argument leans on decades-old precedent, most notably a case called Matter of Blas from the Board of Immigration Appeals in 1974, affirmed in 1976. The BIA characterized adjustment of status as "extraordinary relief" that was not designed to supersede the consular process — the system of applying for a green card through a US embassy abroad.
The USCIS Policy Manual had already listed the framework officers were supposed to use when exercising discretion: family ties, moral character, immigration history, length of residence, hardship to qualifying relatives. That framework wasn't new. What was new — and what PM-602-0199 formalized — was the instruction to treat this framework as a live, active part of every adjudication, not background guidance that rarely got applied.
One important thing to understand about the legal argument in the memo: much of the precedent it relies on comes from the removal proceedings context — cases involving people already in immigration court, fighting deportation, seeking adjustment as a defense. That is a fundamentally different situation from someone who came to the United States, married a US citizen, and filed an I-485 affirmatively. Using those cases to define how discretion should be exercised in routine family-based adjustment applications is, in our view, a significant misapplication of that precedent. But officers are being told to use this framework, and that is the practical reality applicants are now navigating.
How the New Policy Changed Discretion in Practice
Before PM-602-0199, the practical reality for most immediate-relative adjustment cases looked like this: eligibility plus admissibility plus a clean record equaled approval. Discretion existed on paper but rarely determined outcomes for straightforward family cases.
After PM-602-0199, that equation has changed. Eligibility and a clean record get you in the door. They are the floor — the minimum required to be considered. What closes the deal is affirmative evidence that you deserve permanent residence: documented equities, a coherent entry narrative, evidence of a real shared life.
The memo contains one sentence that captures this shift more clearly than anything else: "The absence of adverse factors, by itself, does not demonstrate such unusual or outstanding equities."
Not having problems is no longer the finish line. Officers are now explicitly instructed to look for affirmative reasons to approve — not just the absence of reasons to deny.
The procedural consequence is also significant: officers are now instructed to write out their positive and negative factor analysis in denial notices. That means discretionary reasoning will be documented, which in turn means more formal RFEs, more detailed denials, and more appellate record to work with — but also more opportunities for thin applications to get scrutinized in ways they previously weren't.
What USCIS Weighs in a Discretionary Decision
The discretionary analysis involves two sides of a ledger.
Adverse factors — things that weigh against approval — now include:
- Choosing to stay and adjust from inside the US rather than departing and consular-processing (the "failure to depart as expected" factor elevated by PM-602-0199)
- Status violations or periods of unlawful presence
- Inconsistencies between entry documents and the adjustment application narrative
- Prior immigration violations or misrepresentations
Positive factors — things that weigh in favor of approval — include:
- Family ties, particularly to US-citizen children and a US-citizen spouse
- Length of continuous, lawful residence in the United States
- Tax compliance and financial integration — employment history, joint filings, documented economic contribution
- Community involvement and moral character
- Hardship to qualifying US-citizen relatives if the application is denied
The burden is on the applicant to build the positive side of that ledger. USCIS is not going to build it for you. An application that only addresses eligibility — and doesn't proactively document equities — is a weaker application than it would have been a year ago.
Why This Matters Even If You're Eligible
Eligible doesn't mean approved. It means you're allowed to be considered.
Every adjustment of status applicant now needs to think about two separate questions, not one. First: do I qualify? Second: does my file affirmatively demonstrate that I deserve this benefit?
The first question is about the checklist — the I-130, the I-485, the medical exam, the police certificate, the affidavit of support. That part hasn't changed.
The second question is about the story your file tells — your entry narrative, your financial documentation, your community ties, your family circumstances, the documented evidence of the life you've built here. That is the part that now requires more deliberate attention than it did before.
Thin applications that would have sailed through under the old framework — technically complete, clean record, minimal documentation of shared life — are now more exposed. Not automatically denied, but more vulnerable to RFEs, to closer scrutiny at interview, and to discretionary write-ups that can complicate the path to approval.
The families who will navigate this policy successfully are those who build their applications to answer both questions. Not just: am I eligible? But: why should USCIS say yes?
The Bottom Line
Discretion has always been part of adjustment of status law. What changed in May 2026 is that USCIS is now using it — actively, formally, and in a way that affects how every application in the pipeline needs to be built.
If you're planning to file or you have a pending application, this is the right time to make sure your file is doing more than checking eligibility boxes. Take our eligibility quiz — the first case evaluation at Tingen Law is free, and we can give you a real assessment of where your application stands under the current standard.