Policy PM-602-0199: Enhanced Discretion in Adjustment of Status (AOS) - What H-1B Applicants with Citizen Spouses Need to Know
On May 21, 2026, the U.S. Citizenship and Immigration Services (USCIS) issued a Policy Manual update (PM-602-0199) stating that it will adjudicate Adjustment of Status (AOS) applications, which allow individuals to change their visa status to permanent residency without leaving the United States, with more stringent discretion. Immediately following the announcement, an interpretation spread that “most applicants will now have to return to their home countries to obtain a green card,” causing anxiety within the Korean community. Now, one month after the implementation, let's calmly examine what has actually changed and what remains the same, and what to check for each visa type.
Press release vs. Memo Body differences
“In this memo, USCIS defined adjustment of status as ‘a matter of discretion and administrative grace, and an exceptional remedy in lieu of the usual consular visa process.”"
First, let's be clear on one point. This memo did not create new law. The principle that adjustment of status is a matter of examiner discretion, not applicant entitlement, has been in the law since the enactment of Section 245 of the Immigration and Nationality Act (INA) in 1952. What the memo did was instruct examiners to treat that discretion as an “exceptional and disfavored relief,” and to apply that discretion more strictly than before.
The substance of the confusion lay in USCIS's own explanation. While the press release headline stated that adjustment of status would be granted “only in exceptional circumstances,” this phrase was absent from the body of the memo itself. What the body of the memo stated was that adjustment of status is discretionary, the burden of proof lies with the applicant, and it would only be approved for cases with sufficient grounds. Following the strong headline of the press release, interpretations spread among immigration practitioners that “most applicants would be affected.” Shortly thereafter, a Department of Homeland Security (DHS) spokesperson clarified through the media on May 29th that it was a “reminder of existing discretionary authority” and that "adjudications are made on a case-by-case basis." What fueled the month of anxiety was not the content of the policy itself, but rather this inconsistent explanation.
H-1B and L-1 Dual Intent Applicants - Eligibility Remains the Same
“USCIS memos explicitly acknowledge that visa holders with dual intent, such as H-1B or L-1, are eligible to apply for adjustment of status while in the United States.”
Dual intent refers to the eligibility to pursue permanent residency while maintaining a temporary employment visa. The H-1B specialty occupation visa and the L-1 intracompany transfer visa are prime examples. This memo clarifies that holders of these visas can apply to adjust their status without leaving the U.S. This is a welcome relief for Korean professionals and their families preparing for employment-based green cards.
However, this is not yet grounds for reassurance. The memo explicitly stated that “merely maintaining dual intent alone does not warrant favorable discretion.” The mere fact that one has diligently maintained an H-1B status does not guarantee approval, and the adjudicator will consider other positive and negative factors. The memo also added that immigration law generally expects visa holders with dual intent to undergo consular processing in their home country, even if they are in the United States. This means that being eligible to apply and actually receiving favorable discretion are two different things.
If it's not a dual-intent visa, further explanation is needed.
“According to USCIS guidance, immediate relatives, such as a U.S. citizen's spouse, parents, and minor unmarried children, are eligible for adjustment of status even if they have certain immigration violations.”
Not all visas are issued with dual intent as a premise. In fact, many visas, such as the F-1 student visa and B-1/B-2 visitor visas, are issued on the premise that there is “no intention to stay permanently in the United States.” If someone who entered the U.S. with such a status later marries a U.S. citizen and applies for adjustment of status, the immigration officer will examine both the intent at the time of entry and any subsequent changes in circumstances. If there are circumstances where the marriage and application occur shortly after entry, it may raise suspicion that permanent residency was sought from the beginning, making it even more important to prepare documentation to explain the circumstances.
Fortunately, the law has clear safeguards. Immediate relatives, such as spouses, parents, and minor unmarried children of citizens, are exempt from certain restrictions under INA Section 245(c). This means that even if they have overstayed their authorized period of stay or have worked without authorization, their eligibility for adjustment of status itself is maintained. This memo cannot eliminate this statutorily defined eligibility either. However, even in this case, eligibility and discretionary approval are separate matters, so it is safer for immediate relatives to apply with thoroughly established positive reasons.
Citizen Spouse — Still Advantageous, but Evidence Has Become Crucial
“INA Section 245 is a provision established in 1952 that allows an alien who has lawfully entered and is eligible for permanent residence to adjust their status to permanent resident without leaving the United States.”
The largest group of Koreans eligible is spouses of U.S. citizens. Historically, spouses of U.S. citizens have been the group for whom USCIS has exercised its discretion most generously. Immigration lawyers generally observe that this trend will largely continue even after this memorandum. Spouses who have no arrest record or past immigration violations and have positive reasons to remain in the U.S. are likely to proceed much as before.
What has changed is the burden of proof. Previously, it was close to an “approval if no disqualifying factors exist.” Now, officers are instructed to review in the direction of “deferring to consular processing if exceptional circumstances and positive equities do not justify an adjustment of status within the United States.” This means that applicants must actively prove “why I should be approved within the United States,” rather than merely demonstrating that “there is nothing unfavorable about me.” It has become that much more important to provide documentation such as the genuineness of a marriage, dependent family members, settlement in the United States, and diligent tax payments from the application stage. The positive reasons here are not extraordinary. Ordinary but truthful life records, such as a long-standing marital life, raising children, consistent tax payments, and stable employment, become the best evidence.
To prepare for increased requests for additional documents and notices of refusal
“According to USCIS guidance, adjudicators exercise discretion on a case-by-case basis by weighing factors such as family ties, immigration status and history, good moral character, and all other relevant elements.”
The most realistic outcome of this memo is an increase in Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs). This is because adjudicators will be more meticulous in documenting the basis for their discretionary decisions. Even for the same case, adjudications will take longer, and more detailed explanations may be required.
The core of the response is to “submit evidence of financial stability along with the application.” Previously, it was common to submit only the eligibility documents and then supplement them when necessary. However, it is now safer to submit documents proving a positive reason for staying in the United States from the beginning. Examples of such documents include tax filing history, stable employment, community involvement, and family support. Receiving an RFE or NOID does not automatically mean denial. It is important to remember that a significant number of cases are approved if the deficiencies are adequately addressed within the given deadline. However, missing the response deadline stated in the notice can lead to denial, regardless of how strong your evidence is. Therefore, upon receiving an RFE or NOID, it is advisable to first check the deadline and then schedule a response plan with your attorney.
Closing remarks
To summarize the past month since implementation: the law itself has not changed, nor have the eligibility requirements. However, the burden of proof has increased for applicants during the review process. There are three things you should prepare now. First, if you are planning to adjust your status, gather not only your qualification documents but also evidence demonstrating a compelling reason to remain in the United States, starting from the application stage. Second, if you have any past arrests, fines, or immigration violations, consult with an attorney first to assess their impact and your options for addressing them. Third, be cautious about deciding to voluntarily depart the country due to anxiety, and then seeking consular processing. If a case that could have been resolved through adjustment of status within the U.S. requires you to depart, that departure itself may trigger a 3- or 10-year bar to re-entry due to your past unlawful presence, potentially causing your family to be separated for a longer period. You should also remember that the impact will vary significantly depending on which visa and category you fall under. Rather than being swayed by every policy announcement, the most reliable preparation is to get an accurate diagnosis of the facts of your own case.
Disclaimer: This column is for general information purposes only and is not legal advice for your specific case. You should always consult with an attorney who specializes in immigration law for your individual case.
Law Offices of Jin Dong Cho
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