What’s Happening
On May 21, 2025, U.S. Citizenship and Immigration Services (USCIS) announced the issuance of Policy Memorandum PM-602-0199 (“PM”), providing sweeping new guidance on the exercise of discretion in adjustment of status (AOS) applications under INA § 245. This memorandum represents a significant shift in USCIS adjudication policy, emphasizing that adjustment of status is a privilege, not a right, and that discretionary denials should be used more robustly even where applicants are otherwise statutorily eligible.
This guidance will have immediate and substantial implications for employers sponsoring foreign national workers for permanent residence, particularly those with employees who have any criminal history, immigration violations, or other potentially negative factors in their record. While the PM will have implications for all types of adjustment of status applications, this post focuses primarily on the impact of the PM on employment-based filings.
What You Need to Know
The key provisions of the PM include:
1. Reaffirmation of Discretionary Authority
The memo emphasizes that adjustment of status under INA § 245 is an act of administrative grace, and USCIS officers have broad discretionary authority to deny applications even when:
The applicant meets all statutory eligibility requirements
No ground of inadmissibility applies
An approved immigrant visa petition exists
2. Expanded Negative Factors for Discretionary Consideration
USCIS instructs officers to consider a wide range of negative factors, including but not limited to:
Criminal conduct (even if not resulting in conviction, dismissed, expunged, or not constituting a ground of inadmissibility)
Immigration violations, including:
Overstays (even if not triggering unlawful presence bars)
Unauthorized employment
Failure to maintain status
Prior removal orders or voluntary departures
Misrepresentation (even if not rising to INA § 212(a)(6)(C) level)
Fraud or misrepresentation in any context, including tax, benefits, or identity fraud
Failure to pay taxes or other civic obligations
Public benefits usage (even if lawful)
Gang affiliation or association with criminal organizations
National security or public safety concerns
Lack of good moral character indicators
3. Weighing of Equities
Officers are instructed to weigh negative factors against positive equities, which may include:
Length of lawful residence in the United States
Family ties to U.S. citizens or permanent residents
Employment history and community ties
Hardship to qualifying relatives
Evidence of rehabilitation (for criminal issues)
However, the memo makes clear that the presence of any significant negative factor may outweigh substantial positive equities, and officers are not required to find the equities balance in the applicant's favor.
4. No Presumption of Approval
The memo explicitly states that there is no presumption that a statutorily eligible applicant will receive a favorable exercise of discretion. Officers are instructed to conduct individualized assessments with heightened scrutiny.
What This Means
Employment-Based Green Card Sponsorship
Employers sponsoring foreign nationals for employment-based immigrant visas should be aware of the following:
Increased Scrutiny of Adjustment Applicants: Employees filing Form I-485 will face more rigorous review of their entire immigration and personal history. Issues that previously would not have prevented approval may now result in denial.
Disclosure Obligations: Applicants must fully disclose all arrests, citations, immigration violations, and other potentially negative factors. Failure to disclose—even matters the applicant believes are immaterial—could be treated as a negative discretionary factor or potential misrepresentation.
Processing Delays: Expect extended processing times as USCIS officers conduct more thorough discretionary analyses.
RFEs and NOIDs: Increased issuance of Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) based on discretionary grounds.
Dual Intent Visa Categories (H-1B, L-1, etc.)
For employees in dual intent visa categories who intend to pursue adjustment of status:
Pre-Filing Assessment Critical: Employers should ensure thorough vetting of an employee’s background before initiating PERM labor certification or I-140 sponsorship.
Strategic Timing: Consider whether to delay AOS filing until negative factors can be mitigated or explained with supporting documentation.
Alternative Pathways: For employees with significant negative factors, consular processing may now present a more favorable adjudication environment (see analysis below).
Strictly Nonimmigrant Intent Visa Categories (F-1, B-1/B-2, TN, E-1/E-2, etc.)
For employees in nonimmigrant visa categories pursuing permanent residence:
Double Jeopardy Risk: These individuals face compounded risk because any prior violation of status or unauthorized employment creates both potential inadmissibility issues AND negative discretionary factors.
F-1 OPT/STEM OPT Violations: Students who had unauthorized employment, worked in excess of allowed hours, or violated program requirements face heightened scrutiny.
Status Violations: Any period of status violation, even if brief or technical, should be evaluated and documented.
A New Calculus: Adjustment of Status v. Consular Processing
The Traditional Analysis
Historically, the choice between adjustment of status (AOS) and consular processing (CP) for obtaining an immigrant visa involved weighing factors such as:
Processing times
Ability to travel (advance parole vs. maintaining nonimmigrant visa)
Convenience and cost
Interview location preferences
Risk tolerance for foreign processing
For applicants with minor criminal issues or immigration violations not rising to the level of inadmissibility, AOS was typically preferred because:
Applicants could remain in the U.S. during processing
Work authorization (EAD) and travel authorization (AP) were available
The New Analysis Under PM-602-0199
This policy memo fundamentally alters the AOS vs. CP calculus for applicants with prior criminal issues or immigration violations that would not otherwise render them inadmissible:
| Factor | Adjustment of Status (AOS) | Consular Processing (CP) |
|---|---|---|
| Discretionary Standard | Heightened scrutiny; broad discretionary denial authority now emphasized | Consular officers exercise discretion, but focus is primarily on inadmissibility grounds |
| Non-Inadmissible Criminal Issues | Explicitly listed as negative discretionary factors; may result in denial even if not legally disqualifying | Less emphasis on discretionary denial for matters not constituting inadmissibility |
| Immigration Violations (minor) | Now weighted heavily as negative factors; overstays, work violations, status lapses subject to scrutiny | Primarily relevant only if triggering 3/10-year bars or other inadmissibility |
| Misrepresentation (minor) | Broad consideration of any dishonesty in any context | Focus on material misrepresentation under INA § 212(a)(6)(C) |
| Adjudicator Discretion | USCIS instructed to use discretion more robustly to deny | State Department/consular discretion more narrowly construed |
| Appeal/Review Options | Administrative appeals; federal court review limited | Limited review; potential for advisory opinion requests |
Practical Guidance: When CP May Now Be Preferable
For applicants who have:
Criminal arrests without conviction (dismissed charges, expunged records, diversion programs)
Minor immigration violations (brief overstays not triggering bars, technical status violations, minor unauthorized employment)
Conduct not rising to inadmissibility but potentially viewed negatively (e.g., marijuana use in legal states, minor fraud allegations, civil infractions)
Issues with complete disclosure in prior immigration applications that could be characterized as misrepresentation
Consular processing may now offer a more favorable adjudication environment because:
Consular officers focus on inadmissibility determinations rather than broad discretionary denials
The INA § 212 inadmissibility grounds are defined statutory categories with established legal standards, whereas USCIS discretion under the new guidance is expansive and less predictable
Consular interviews are typically shorter and less document-intensive on non-inadmissibility issues
Consular officers are not bound by USCIS policy memoranda
Caveats to Consular Processing:
Consular processing is not without risks, which include
Applicant must depart the U.S. and attend an interview abroad
Unlawful presence may trigger 3/10-year bars upon departure triggering need for waiver
No EAD/AP benefits during processing
Less recourse if visa is denied (consular decision are generally not appealable in federal courts)
INA § 221(g) refusals can result in prolonged delays
What You Should be Doing Now
Some immediate actions employers and foreign nationals should consider taking include:
Audit Pending I-485 Cases
Review all pending adjustment of status applications for employees with any criminal history, immigration violations, or other potentially negative factors. Consider supplementing the record with positive equities documentation and explanatory statements as it is unclear if this PM will apply retroactively to pending cases.
Enhanced Pre-Filing Due Diligence
Before initiating PERM or I-140 sponsorship, conduct thorough intake interviews to identify any potential discretionary issues. This should include:
Complete criminal history (including arrests, juvenile matters, expunged records, foreign convictions)
Full immigration history (all entries, status violations, overstays, unauthorized employment)
Tax compliance history
Any prior misrepresentations or fraud allegations
Documentation of Positive Equities
Proactively compile evidence of positive factors:
Length of U.S. residence
Employment history and contributions
Community involvement
Family ties
Tax returns demonstrating compliance
Evidence of rehabilitation (if applicable)
Case-by-Case AOS vs. CP Analysis
For each green card applicant, conduct a formal risk assessment comparing adjustment of status to consular processing, particularly for those with any adverse factors.
Ongoing Compliance and Recordkeeping for Foreign Nationals
Advise employees to proactively monitor and document their immigration compliance history throughout their stay in the U.S. this should include:
Carefully reviewing I-94 records after every admission to confirm correct status classification and expiration date, and promptly seeking correction of any CBP admission errors
Immediately alert immigration counsel to any encounters with law enforcement including arrests, citations, criminal charges, secondary inspection referrals, or other government interactions to D&S immigration counsel, regardless of whether charges were filed or ultimately dismissed
Maintain complete records of all immigration filings, approval notices, travel history, visa stamps, and prior immigration documents. Preserving documentation demonstrating maintenance of status, including employment records, pay statements, Form I-20s, DS-2019s, DS-160 applications, prior EADs, and tax filings where applicable
Conducting FBI, DHS, USCIS, CBP, Freedom of Information Act (FOIA) requests prior to filing adjustment of status applications in cases involving prior immigration encounters, arrests, border inspections, or other potentially adverse history to identify any inconsistencies, prior allegations, or government records that may require explanation
Ensuring absolute consistency and accuracy across all immigration filings, visa applications, and government submissions to avoid discretionary concerns related to omissions or perceived inconsistencies
Other strategic considerations include:
Consider Delaying Filing
For applicants with recent negative factors (e.g., recent arrests, recent status violations), consider whether waiting may allow for:
Passage of time demonstrating rehabilitation
Resolution of pending matters
Accumulation of additional positive equities
Maintain Nonimmigrant Status
Advise employees to meticulously maintain valid nonimmigrant status to avoid creating additional negative discretionary factors.
Consult Immigration Counsel Before Travel
Employees with pending AOS applications should consult counsel before any international travel, as reentry could implicate discretionary factors or waiver requirements.
Prepare for RFEs and NOIDs
Budget additional time and resources for responding to government requests based on discretionary concerns.
What To Expect Next
This policy memorandum reflects the current administration's emphasis on rigorous enforcement of immigration laws and restriction of discretionary benefits. Employers should anticipate:
Increased denial rates for adjustment of status applications
Longer processing times due to enhanced scrutiny
More requests for evidence regarding discretionary factors
Potential litigation challenging discretionary denials
Increased pressure on already backlogged U.S. consular posts and immigrant visa processing systems, resulting in long wait times for immigrant visa interviews
D&S will continue to monitor implementation of this guidance and provide updates as USCIS adjudication patterns emerge.
This post is for informational purposes only and should not be construed as or relied upon as legal advice. Employers should consult with qualified immigration counsel to assess how these developments may impact specific cases and workforce planning decisions. Paulina Baginska, a Senior Associate at DiRaimondo & Schroeder LLP, assisted in the preparation of this alert.