USCIS Memorandum 602-0199 of May 22, 2026.
USCIS plans to restrict the ability to obtain a Green Card from within the U.S. for those who hold a temporary status, including parole.
Why must all "temporary" noncitizens now leave the United States and request family reunification from outside its borders — often in their country of nationality?
Why can the departure itself close the way back for years — even if the petition is approved — for those who have spent more than 6 months in the country unlawfully?
Who will this affect, and who — most likely — not?
And how realistic are these changes?
In this piece we break down: how the old system worked and what the memo changes; why the government wants this at all; whom the new rules reach and whom they pass by; what it all means in practice; and what can be done if you are in the line of fire. Separately, we will speculate about whether this memorandum will hold up in court.
1. How the old system worked and how the memo changes it
2. The reasons for the change
3. Who is exposed
4. Who is not affected
5. What the consequences will be
6. The one opening: "unusual or outstanding equities"
7. What happens next, and will this memorandum hold up
8. Conclusion
9. Table of authorities
For the past thirty years, and likely longer, noncitizens who entered the United States through inspection could in most cases adjust status and obtain a green card through marriage.
Where the marriage was to a U.S. citizen, almost everything was forgiven — unlawful presence, unauthorized work, and much else. With a green card holder it was more complicated, and such applicants often had to depart in any event. The crucial point was that none of this required leaving the country: it could all be done on the spot, in the United States.
An important nuance — departure, for those who had spent more than 6 months in the United States unlawfully, could be a barrier to coming back. See INA § 212(a)(9)(B); 8 U.S.C. § 1182(a)(9)(B). That is precisely why the ability to do it on the spot was so important. This was a well-trodden path used by millions.
The government wants to close that path. Yesterday, May 21, USCIS issued Memorandum 602-0199, which reconceives the entire adjustment process. The government's position is now this: adjustment is a grace and an exception, not a right. See Matter of Blas, 15 I&N Dec. 626, 628, 630 (BIA 1974; A.G. 1976); Patel v. Garland, 596 U.S. 328, 332 (2022).
Those who entered as temporary visitors — students, tourists, businesspeople, parolees, and similar classes of noncitizens — and who want a green card through marriage are to depart the United States and go through consular processing abroad — in their country of nationality or, where visas are not issued there, in a third country. That is the "normal" path. There are, of course, exceptions — but in the view of USCIS they should apply in extraordinary cases.
In the government's view, this is how it always should have been — this is how Congress designed it. Congress built the whole system around consulates. The normal path is to obtain a visa in one's home country and only then enter, already with a green card. Adjustment on the spot, inside the United States, was meant to be a narrow exception, not the default route it has in practice become. See Matter of Briones, 24 I&N Dec. 355, 359 (BIA 2007).
I will admit there is probably some truth in this; the route has always been a gray one. But on the whole, the reason is probably simpler — this is just one more instrument of pressure on those who try to convert one status into another, first and foremost the U4U and CBP One parolees. They are being compelled to leave, in full knowledge that returning will be hard.
The net effect is a system in which nearly all green-card-through-marriage applicants will have to leave the United States.
In substance, any noncitizen on a temporary status:
Parolees — U4U and everyone who entered on parole through CBP One — are hit the hardest.
One point to note: filing for and awaiting asylum after entry will most likely not solve the problem. Pending asylum is not a status. Asylum on appeal is not a status either. All of these categories will have to depart and apply from outside the country. Some will not be able to do so.
First and foremost — holders of dual-intent visas, for instance H-1B or L-1. These visas inherently contemplate an intent to adjust, and, per the text of the memorandum itself, adjusting through marriage is permissible. They will most likely not need to depart — though there is no 100-percent guarantee: comment 20 to the memorandum cautions that dual intent alone may not be enough, and some additional documentation may still be required.
Next — all categories in which adjustment on the spot is guaranteed by statute. In those cases the officer must approve, if there are no other impediments. The memorandum itself sets these categories aside. These are NACARA, HRIFA, and several other very narrow categories.
A separate note: the memorandum acknowledges other exceptions as well — for example, categories for which adjustment of status is the only pathway to a green card, with no consular alternative, and certain special humanitarian categories with their own rules. Special rules apply to these, and the "you should have departed" logic generally does not reach them. That is a large topic of its own, beyond the scope of today's publication. If you think you may fall into one of these categories, that is a matter to take to an attorney directly.
That's it. For everyone else applying through INA § 245(a), adjustment is a grace, not a right.
Everything depends on your procedural posture.
If you fall within the memorandum and are still in lawful status — you will most likely have to depart and file from abroad. This can create a problem if visas are not issued in your country of nationality — as, for example, in Russia, where immigrant visas are not issued and the case is transferred to a consulate in a third country. You may have to wait years. You may be able to return on some temporary status — but it will be difficult.
It is harder for those whose status has already lapsed. If you have accrued more than 6 months of unlawful presence — the very act of departing will most likely trigger a three-year bar on return. See INA § 212(a)(9)(B)(i)(I). Even if your petition is approved. Yes, a separate waiver is available — see INA § 212(a)(9)(B)(v) — but that too is not easy. And if you stayed more than a year — the bar is already ten years.
In practice, then, many will lose the ability to return — at least quickly. Adjusting on the spot will not be available, and departing will trigger a bar on reentry. All of this applies equally to those who entered on parole, including U4U, but "fell out" of it. Adjusting through marriage will be problematic.
A word on asylum. Pending asylum is not itself a status, and it does not remove you from the memorandum's reach. However, in most cases it stops the unlawful-presence clock. See INA § 212(a)(9)(B)(iii)(II). So if asylum is still pending — at first instance or on appeal — and there are no other problems, you may be able to depart without triggering the reentry bar. But the analysis here is complex, and if this is your situation, you absolutely need an attorney. Ultimately, if you cannot persuade USCIS that your case merits leniency, you may have to leave.
One more important point. As things stand, the consensus view is that these changes reach both new cases and those already filed. The reason is the text of the memorandum itself: it is framed as a mere reminder, not a new rule. So in theory USCIS could try to apply this logic to cases filed before May 21, 2026 that are still pending.
What is happening at interviews right now? From colleagues we know that on the very day the memo issued, officers already began asking questions based on it — in particular, why the applicant wants to obtain documents without leaving the country; whether he could in fact depart and request them in his country of nationality; whether he still has relatives or acquaintances there who could help; and, where there is unlawful presence, why he did not return home when his period of stay expired. The outcome of these cases is not yet known — in each instance USCIS took time to deliberate. Moreover, on the same information, USCIS has already begun issuing RFEs — Requests for Evidence — expressly demanding a showing of those outstanding equities. In other words, the memorandum is being applied not only at interviews but on paper, even before them.
First of all — do not panic. As noted above, whether the memorandum sticks is an open question; corrections are almost certain, up to and including full repeal, and this has happened before. So do not abandon your case today — keep preparing it.
What is more, the memorandum as written today leaves an opening — a narrow one, but better that than none. On the government's reading, adjustment may be granted where the case presents unusual or outstanding equities. See Matter of Blas, 15 I&N Dec. at 641. And it is important to note that a spotless record, by itself, does not qualify as such. So do not rush to gather letters from your church.
Historically, in comparable contexts, the equities that counted included very deep family ties in the United States; very long residence, typically in lawful status; serious hardship to a citizen spouse or child. Sometimes a grave illness that cannot be treated outside the country. One more point: USCIS announced just hours ago that those whose presence serves the national interest of the United States will most likely not be denied adjustment.
There is a flip side, too. Judging by the most recent practice, officers are at a minimum looking at whether you still have relatives in your country of nationality: if you do, returning is in theory easier — and that can be used against you. That said — and this matters — no one yet knows how officers will weigh all of this. Practice will tell. Still, for those without such ties, none of this will help.
And what if you are denied? The key thing to understand: a discretionary denial is largely unreviewable in court. The Supreme Court held in Patel v. Garland, 596 U.S. 328 (2022) that federal courts may not review the factual findings underlying a discretionary decision; the same bar is codified at INA § 242(a)(2)(B); 8 U.S.C. § 1252(a)(2)(B). What remains in practice: a motion to reopen or reconsider with USCIS itself — though that is the same office that denied you; and if you are placed in removal proceedings, you can renew the application before an immigration judge, then appeal to the BIA, and only then file a petition for review with a federal court of appeals. But even there the court reviews only questions of law and constitutional claims — see INA § 242(a)(2)(D); 8 U.S.C. § 1252(a)(2)(D) — not the discretionary weighing itself. In plain terms: you can challenge a legal error, but not the fact that "the officer was not persuaded." Do not count on a federal court to undo a discretionary denial — the fight has to be won at the filing stage, not on appeal.
The bottom line: if you are in the line of fire, start building the foundation for your argument today. In any event — given how tangled the issue is — find an attorney.
And one more important point. Because the new rule may be applied to cases already pending, it makes sense to add to the file, in advance, a separate statement of outstanding equities — and if everything has already been filed, to send it in as a supplement. Show deep ties to the United States — a citizen spouse, children, relatives; long residence, especially from a young age; serious hardship on separation; education; work and tax history; business or property; U.S. military service; community involvement — and anything else that may help. In the past this was often unnecessary. Now it may well be relevant. And, ultimately, look for niche arguments tailored to your specific situation.
In all likelihood, various organizations will soon try to vacate or at least narrow these rules through the courts. The attorney forums are already boiling. The memorandum is only a day old, and our colleagues across the country are already debating how to fight it. So litigation is unavoidable.
What arguments will be made? First and foremost — a procedural one, like the one that buried the BIA reform. In substance, USCIS is trying to push through a significant policy change while bypassing the ordinary process — without comment and all the other safeguards. That is a classic ground for striking it down, and that is how many executive-branch initiatives have been knocked out over the past year. In my own view — the argument here is stronger than it was in the BIA case.
Next — misinterpretation of the statute: USCIS is trying to change the law around Congress. There is a chance of a correction here, though how realistic it is I am not prepared to say yet — the statute is complex, and that analysis will take time. There will, of course, be constitutional arguments too — due process, arbitrariness, and the like. And here is where there are problems.
Similar arguments have lately been far from uniformly successful. Across a range of other immigration questions, courts have sided with the government. The classic rejoinder is that an absence of enforcement does not repeal the statute itself. There are other wrinkles as well. The memorandum itself tries to cast itself as mere internal guidance — claiming that nothing has changed, that it is only reminding everyone how things are supposed to work. And although in practice it turns everything on its head, that framing may create problems.
More likely, what lies ahead is a long and grinding fight with different outcomes in different circuits. And while it plays out — USCIS officers will be applying the memorandum here and now.
That said, not everyone agrees: my colleague attorney Bird, who has deep experience in this area, believes enforcement of this practice will be slowed — at least until a court has reviewed it in full. We shall see.
Memorandum 602-0199 is today's reality, and USCIS officers will be applying it now. We will keep our finger on the pulse and keep you informed of any developments. If you need help, reach out.
Matter of Blas, 15 I&N Dec. 626 (BIA 1974; A.G. 1976), aff'd, 556 F.2d 586 (9th Cir. 1977) (table) — Adjustment is granted only as "a matter of discretion and administrative grace" (at 628), is an "extraordinary" form of relief (at 630), and the applicant must show "unusual or even outstanding equities" (at 641).
Patel v. Garland, 596 U.S. 328, 332 (2022) — Relief from removal is always a matter of grace; even an eligible noncitizen must persuade the adjudicator that he merits a favorable exercise of discretion.
Matter of Briones, 24 I&N Dec. 355, 359 (BIA 2007) — Congress limited the use of the adjustment mechanism to encourage noncitizens to follow the orderly consular process.
INA § 245(a); 8 U.S.C. § 1255(a) — Discretionary adjustment of status: status "may be adjusted by [the Secretary], in his discretion."
INA § 212(a)(9)(B); 8 U.S.C. § 1182(a)(9)(B) — Reentry bar after departure: three years for unlawful presence over 180 days (subpara. (i)(I)), ten years for presence over one year (subpara. (i)(II)); tolling of unlawful presence while a bona fide asylum application is pending (subpara. (iii)(II)); waiver for spouses and children of U.S. citizens and LPRs upon a showing of extreme hardship (subpara. (v)).
INA § 242(a)(2)(B); 8 U.S.C. § 1252(a)(2)(B) — Strips federal courts of jurisdiction to review discretionary determinations, including adjustment of status; confirmed in Patel v. Garland, 596 U.S. 328 (2022).
INA § 242(a)(2)(D); 8 U.S.C. § 1252(a)(2)(D) — Preserves judicial review of constitutional claims and questions of law notwithstanding the bar in § 242(a)(2)(B).
NACARA, Title II of Pub. L. 105-100, 111 Stat. 2160 (1997); HRIFA, Division A, Section 902 of Pub. L. 105-277, 112 Stat. 2681 (1998) — Examples of non-discretionary adjustment categories that the memorandum sets aside.
USCIS Policy Memorandum PM-602-0199 (May 21, 2026) — States that adjustment of status under INA § 245 is a matter of discretion and administrative grace, not designed to supersede the regular consular processing of immigrant visas.
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