San Francisco Immigration Attorney’s Personal and Professional Guide to Navigating USCIS’s May 2026 Policy Memorandum on Adjustment of Status

By: Dr. Marc Anthony Santamaria

I am an immigration attorney with personal experience with adjustment of status based on marriage. My wife is from Vietnam and I navigated this exact process during Trump's first term when similar restrictive changes arose. Today, she is a proud U.S. citizen. Now we have one son and a cat together. We hope for your family to grow too through this process. 

Further, for the past decade, our firm has helped many applicants in Northern California successfully obtain green cards via adjustment of status based on marriage. While the legal landscape is constantly evolving, our strategic approach remains steadfast. This guide provides an objective and strategic overview of the new U.S. Citizenship and Immigration Services (USCIS) Policy Memorandum PM-602-0199, detailing the vulnerabilities it targets and the affirmative strategies we will utilize to secure your future in the United States. I read the whole memo myself and have developed the following strategies for those navigating this process, drawing from over 13 years of immigration practice and my own personal experience with it.

1. The Legal Landscape: The Post-PM-602-0199 Framework

On May 21, 2026, USCIS issued PM-602-0199, formally reminding adjudicators that adjusting status from within the United States is a discretionary benefit rather than an automatic entitlement. Under the Immigration and Nationality Act, the status of an alien inspected and admitted or paroled into the United States may be adjusted by the Attorney General in his discretion. 8 U.S.C. § 1255(a).

Historically, if an applicant met the statutory requirements and lacked significant immigration violations, approval was highly likely. The new directive explicitly instructs adjudicators to treat adjustment of status as an "extraordinary relief" and an act of "administrative grace." USCIS Policy Memorandum PM-602-0199 (May 21, 2026).

To understand why this matters for your case, it helps to know the legal grounding for this posture relies heavily on Board of Immigration Appeals (BIA) precedent, which established that adjustment is not designed to supersede the regular consular visa process abroad. Matter of Blas, 15 I. & N. Dec. 626, 630 (B.I.A. 1974). Decades ago, the BIA noted that in the absence of adverse factors, adjustment should ordinarily be granted. Matter of Arai, 13 I. & N. Dec. 494, 496 (B.I.A. 1970). However, PM-602-0199 severely restricts this presumption, explicitly stating that the mere absence of adverse factors does not automatically demonstrate the "unusual or even outstanding equities" now required to tip the discretionary balance in an applicant's favor. In plain terms: simply having no violations on your record is no longer enough. 

Compounding this challenge is the fact that federal courts lack jurisdiction to review the factual findings underlying USCIS discretionary relief decisions. Patel v. Garland, 596 U.S. 328, 332 (2022). Because federal judges cannot easily second-guess an adjudicator's factual balancing of your equities, we must build an impenetrable evidentiary record at the initial filing stage.

2. Identifying the Vulnerabilities: Anticipating "Red Flags"

Under this new directive, we must prepare for the adjudicator to closely scrutinize your application for conduct that suggests a deliberate "avoidance of consular processing." Key vulnerabilities targeted by the memo include:

• The Single-Intent Visa Pivot: If you entered the U.S. on a single-intent nonimmigrant visa—such as a B-1/B-2 tourist visa, F-1 student visa, or via the Visa Waiver Program (ESTA)—and later apply for a green card, adjudicators are instructed to view this as conduct inconsistent with the purpose of your original admission (unlike dual-intent visas, single-intent categories such as B-1/B-2, F-1, and ESTA do not legally contemplate the possibility of immigrating).

• Failure to Depart as Expected: Remaining in the U.S. beyond your authorized period to pursue adjustment rather than departing is explicitly flagged as a "highly relevant" adverse discretionary factor.

• Status Lapses and Unauthorized Employment: Overstaying a visa or engaging in unauthorized employment will now be weighed heavily at the discretionary balancing stage, even if those violations are statutorily forgiven for immediate relatives of U.S. citizens.

  
  

It should be noted that maintaining lawful status in a dual-intent category (such as H-1B or L-1) is not inconsistent with applying for adjustment of status, but this alone is not enough to guarantee approval.

3. Affirmative Strategies: Overcoming Discretionary Hurdles

While PM-602-0199 presents a strict standard, it is not a barrier to approval for well-prepared cases. We counter these discretionary hurdles by aggressively front-loading your application with affirmative evidence. A favorable exercise of discretion requires balancing adverse factors against social and humane considerations. Matter of Mendez-Moralez, 21 I. & N. Dec. 296, 300 (B.I.A. 1996).

Our strategy revolves around litigating your life story through a comprehensive matrix of positive equities:

Detailed Trajectory of Nonimmigrant Intent: To combat accusations of preconceived immigrant intent at your time of entry, we must meticulously document that your intent to marry and remain in the U.S. materialized after your lawful entry. We will compile dated evidence of unexpected life milestones such as job offer received after entry, a medical diagnosis, or the organic development of a romantic relationship that began after arriving in the U.S.. For example, my wife entered the United States on an F-1 student visa before we met. We initially became friends while we were both attending the same university. One thing led to another, and we eventually got married. Her intent changed after entering the U.S. 

Overwhelming Evidence of Positive Equities: We will provide comprehensive documentation to satisfy the discretionary balancing test. This includes securing years of certified IRS tax transcripts to establish your good moral character, civic responsibility, and positive economic contribution. We also gather signed affidavits from employers, religious organizations, and community leaders verifying your integration into the United States.

Documenting Localized Humanitarian Hardship: We explicitly brief the severe medical, emotional, and economic hardships your U.S. citizen spouse and family would endure if you were forced to depart the country for consular processing abroad.

Preserving Legal Eligibility and Jurisdiction: Even if unforeseen circumstances arise, such as a change in marital status before adjudication, we will vigorously defend your statutory eligibility. The Ninth Circuit has recognized that an applicant should still receive a fair discretionary adjudication even if their petitioning spouse passes away or the marriage ends in divorce after filing. Freeman v. Gonzales, 444 F.3d 1031, 1037 (9th Cir. 2006); see also Choin v. Mukasey, 537 F.3d 1116, 1121 (9th Cir. 2008). We ensure the agency properly construes the law.

Blessing in disguise About the Denial Notice Requirement: Under Policy Memorandum PM-602-0199, if an officer issues a discretionary denial, they must provide a detailed written analysis explaining why the negative factors outweigh the applicant’s positive equities. By building a robust record with an unassailable list of "favorable equities," it becomes significantly difficult for an adjudicator to justify a denial. So this can actually be a blessing in disguise that officers will be required to write more analysis reports that may deter them from writing them in the first place. 

Heightened evidence requirements. My wife and I submitted hundreds of pages of evidence for our case and that was then. We will challenge our clients to provide even more bona fide evidence of their marriage. For example, my wife and I have joint financial documents like a joint checking account. We also shared with the officer our printed photo album books that we got done at a local Walgreens. 

Conclusion: Your Path Forward

The issuance of PM-602-0199 marks a meaningful shift in how USCIS approaches adjustment of status, but it does not close the door. For well-prepared applicants with strong equities, a favorable outcome remains achievable. The key is understanding what adjudicators are now looking for and building a record that answers every question before it is asked.

To recap the strategies that give our clients the strongest foundation: we document the organic development of your life in the United States to defeat any suggestion of preconceived immigrant intent; we assemble a comprehensive matrix of positive equities, e.g., tax records, community ties, employer letters, and more, that makes discretionary denial difficult to justify on paper; we brief the real human hardship that forced departure would impose on your U.S. citizen family members; and we hold the agency accountable to its own written denial requirements, turning PM-602-0199's procedural mandates into a tool that works in your favor.

I have lived this process personally. My wife and I know what it feels like to wait, to worry, and to wonder whether the law will make room for your family. We will do our best to advocate for your family in the U.S. Family is always worth it. Then if you obtain your green card, hopefully our families can have a meal together and if you have kids, maybe our kids can have a play date! We definitely deserve it as parents. 

If you or a loved one is considering an adjustment of status based on marriage, do not wait for circumstances to become more complicated. The earlier we build your application, the stronger your case will be. Contact our office today to schedule a confidential consultation. We are here to listen, to strategize, and to fight for your future in the United States.

Disclaimer: This content is shared for general educational purposes only and does not constitute legal advice. Viewing or interacting with this content does not create an attorney-client relationship. Immigration situations vary from case to case. For legal guidance specific to your situation, consult with a licensed immigration attorney.