Must Immigrants Return Home to Apply for Green Cards? What Applicants Need to Know

On May 21, 2026, U.S. Citizenship and Immigration Services (USCIS) issued Policy Memorandum PM-602-0199, a sweeping statement of how the agency intends to view applications for adjustment of status under section 245 of the Immigration and Nationality Act (INA). The memo’s central message is blunt: adjustment of status is not a right but an act of “discretion and administrative grace,” and applicants who are eligible on paper should not assume approval is automatic.

The memo is framed as a “reminder” rather than a rule change, but its practical effect on adjudications could be significant. For the hundreds of thousands of people who file Form I-485 each year — including many in employment-based and family-based categories — the memo signals heightened discretionary scrutiny and a renewed institutional preference for the consular visa process abroad over adjusting inside the United States.

The Core Argument

The heart of the memo is a doctrine that has existed in case law for decades but is now being elevated into an explicit adjudication posture. USCIS argues that:

Adjustment is “extraordinary relief.” Citing the foundational Matter of Blas, 15 I&N Dec. 626 (BIA 1974; A.G. 1976), and a long line of federal cases, the memo characterizes adjustment as a procedure that lets an applicant “dispense with” the ordinary consular visa process — obtaining a green card without leaving the country. Because it circumvents the normal route, USCIS frames it as inherently exceptional.

It “was not designed to supersede” consular processing. The memo repeatedly stresses that Congress built a detailed statutory scheme expecting nonimmigrants and parolees to depart the U.S. once their authorized purpose ends, and to pursue an immigrant visa from abroad if they want to live here permanently.

The applicant bears the burden. Echoing Patel v. Garland, 596 U.S. 328 (2022), and Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996), the memo states that the applicant must persuade USCIS to exercise discretion favorably, and that officers must weigh adverse factors against positive equities.

What’s New — and What Isn’t

Legally, almost nothing in the memo is novel. The “matter of grace” framing traces back fifty years, and the Supreme Court restated it as recently as Patel (2022) and Santos-Zacaria v. Garland (2023). What is new is the framing as agency policy and adjudicatory instruction.

The memo introduces a notable interpretive move: it treats an applicant’s decision to remain in the U.S. and adjust — rather than depart and consular process — as itself a potential adverse factor. The memo states that when a nonimmigrant or parolee “fails to depart as expected” and instead seeks adjustment, this “contravenes” Congressional expectations and is “highly relevant” to the discretionary analysis, “particularly” where the person could have used the normal immigrant visa process abroad.

In other words, the very act of choosing adjustment over consular processing is reframed as something an officer may weigh against the applicant.

Important Carve-Outs

The memo is not as absolute as its tone might suggest, and it builds in several critical exceptions:

Dual intent is protected. USCIS expressly states that applying to adjust status “is not inconsistent with simultaneously maintaining nonimmigrant status in a category with dual intent.” This matters enormously for H-1B and L-1 holders, who are explicitly permitted to harbor immigrant intent. However, the memo adds a sting in the tail: maintaining lawful dual-intent status “is not sufficient, on its own, to warrant a favorable exercise of discretion.”

Categories with no other pathway are acknowledged. The memo concedes exceptions for “immigrant categories where only adjustment of status provides a pathway to permanent resident status.”

Non-discretionary adjustments are untouched. Certain adjustment provisions — including those under the Cuban Adjustment Act, NACARA, HRIFA, and refugee/asylee adjustment under INA § 209 — are statutorily non-discretionary. The memo confirms that if the applicant meets all eligibility requirements in these categories, USCIS “must approve” without a discretionary balancing test.

VAWA self-petitioners and applicants under INA §§ 245(h), (i), and (m) retain their special protections.

Practical Implications

For practitioners and applicants, several consequences flow from this memo:

For employment-based adjustment applicants (EB-1, EB-2, EB-3), especially those in H-1B or L-1 status, the dual-intent protection remains, but the warning that lawful status “alone” is not enough means officers may probe equities more aggressively. Strong documentation of family ties, length of residence, tax compliance, community contributions, and good moral character becomes more important than ever.

For applicants with any history of status violations — overstays, unauthorized employment, conduct inconsistent with their visa category — the memo invites officers to weigh these heavily, even where the applicant remains technically eligible. The memo explicitly directs officers to scrutinize whether post-admission conduct was “inconsistent with the purpose” of the visa.

For applicants who could consular process abroad, the memo’s logic suggests they may face questions about why they chose to adjust instead. This is a meaningful shift in posture.

A crucial procedural safeguard survives: when USCIS denies on discretionary grounds, the denial notice must explain the specific positive and negative factors and why the negatives outweighed the positives. This preserves a record for motions to reopen, motions to reconsider, or any available review.

The “Unusual or Outstanding Equities” Standard

Perhaps the most consequential line for applicants with adverse factors is the memo’s revival of language from Matter of Blas: where adverse factors are present, the applicant may need to offset them “by a showing of unusual or even outstanding equities.” Critically, the memo states that the mere absence of adverse factors does not, by itself, establish those equities. This raises the practical bar for borderline cases.

What Practitioners Should Watch

The memo closes by signaling that USCIS “may provide policy guidance specific to certain adjustment of status categories or discrete populations.” This strongly suggests follow-on memos targeting particular groups — making PM-602-0199 likely a framework document with more specific guidance to come.

The memo also includes the standard disclaimer that it confers no enforceable rights and is “intended solely for the guidance of USCIS personnel.” It does not, on its own, change a single regulation. But as a statement of adjudicatory philosophy directing officers’ exercise of discretion, its real-world impact on case outcomes could be substantial.

Bottom Line

PM-602-0199 doesn’t rewrite the law — every authority it cites predates it. What it does is consolidate decades of “grace, not right” jurisprudence into an explicit instruction to adjudicators to apply discretionary scrutiny more rigorously, and to view the choice to adjust (rather than consular process) with skepticism. For applicants, the lesson is clear: eligibility is the floor, not the finish line. Building a robust record of positive equities is now essential, particularly for anyone with even minor adverse factors in their history.

(Disclaimer: This article is based on publicly available USCIS policy memoranda, court decisions, and analysis of existing immigration laws, and is intended solely for news and informational purposes. It does not constitute legal advice. Individuals should consult a qualified immigration attorney or authorized legal professional before making decisions regarding their specific immigration situation, application, or legal options.)