USCIS Tightens Discretionary Review of I-485 Applications: How Should Applicants Respond?

On May 21, 2026, U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum titled "Discretionary Review of Adjustment of Status Applications" (PM-602-0199). This six-page document quickly drew widespread attention in the U.S. immigration law community. It is not only reshaping the prospects of tens of thousands of green card applicants in the United States, but also reflects the broader tightening trend in U.S. immigration policy in recent years. (https://www.uscis.gov/sites/default/files/document/memos/PM-602-0199-AdjustmentOfStatusAndDiscretion-20260521.pdf)

Although the policy has been in effect for less than one week, its practical impact has already begun to appear. According to discussions among immigration attorneys, some clients have already received Requests for Evidence (RFEs) or have been asked pointed questions during I-485 interviews, such as: "Why did you choose to file Form I-485 inside the United States instead of attending an immigrant visa interview at a consulate in your home country?" "What factors prevent you from returning to your home country?" and "After your U.S. status expired, why did you not depart the United States?" These are not routine questions. They reflect the practical implementation of the discretionary review required by the memorandum.

On May 26, the American Immigration Lawyers Association (AILA) issued a Practice Pointer on this policy, reminding attorneys that when representing I-485 applicants, they must systematically identify both favorable and unfavorable factors and proactively prepare for discretionary review.

Attorney Sophie Zhang, who has represented a large number of I-485 applicants, believes that this policy change has far-reaching implications and is by no means a one-size-fits-all adjustment. This article provides a detailed analysis from three perspectives: the legal framework, practical application, and case-specific risk.

1. What Is Form I-485?

Regardless of the immigration category, the green card process generally involves two stages:

(1) File an immigrant petition, such as Form I-526E for EB-5 investors, Form I-140 for employment-based immigrants, or Form I-130 for family-based immigrants.

(2) Once the immigrant petition is approved and the priority date becomes current, the applicant proceeds with the green card process. At this stage, there are two possible paths:

(1) Consular Processing (CP): The applicant waits abroad and, after the immigrant visa is approved, attends an interview at a U.S. consulate in the relevant country. Upon entering the United States, the applicant becomes a permanent resident.

(2) Adjustment of Status (AOS): If the applicant is already lawfully present in the United States and the priority date is current, the applicant may file Form I-485 inside the United States. This process does not require departure from the United States and also allows the applicant to apply for employment authorization (EAD) and advance parole (AP), making it more convenient.

In the past, most applicants in the United States preferred AOS because it was simpler, did not require international travel, allowed applicants to work while waiting, and was relatively predictable.

However, this USCIS policy specifically targets this widely used pathway and imposes a new review threshold.

2. Core of the New Policy: From “Eligible Means Approved” to “Must Prove Special Reasons”

First, it is important to clarify a common misunderstanding:

This new policy does not directly prohibit the filing of Form I-485, nor does it directly deny employment authorization (EAD) or advance parole (AP). Its essence is that, within the existing legal framework, USCIS now expressly requires officers to exercise discretion in every I-485 case and to conduct a substantive review of whether the applicant is suitable for adjustment of status inside the United States.

The memorandum states that adjustment of status in the United States is fundamentally an act of agency discretion, not a statutory right of the applicant.

Under the old policy logic: lawful entry + current priority date + no obvious legal bar ≈ approval.

Under the new policy logic: in addition to meeting the basic legal requirements, the applicant must affirmatively demonstrate "unusual or even outstanding equities" that justify adjustment of status in the United States.

Officers are instructed to weigh favorable and unfavorable factors and make a case-by-case discretionary determination, rather than mechanically approving applications that merely satisfy threshold eligibility requirements. If an application is denied, USCIS must provide a written explanation, which has important practical significance for later appeals or review.

3. Risk Reference by Visa Category

The following provides a general risk assessment for different categories of applicants under the new policy. The actual conclusion must still depend on case-specific facts and should not be generalized.

It should be emphasized that the above is a general reference and does not constitute legal advice. Every case should be evaluated one-on-one by an experienced immigration attorney before any decision is made.

4. The Discretionary Review Framework Used by Immigration Officers

The memorandum does not establish any single “automatic denial” factor. Instead, it emphasizes that officers have broad discretion and provides a three-level review framework:

(1) Unfavorable Factors

·       Violation of immigration law or restrictions of the applicant’s visa status

·       Prior misrepresentation or fraud

·       Inconsistency between statements made at entry and conduct after entry

·       Unauthorized employment

·       Overstay

·       Inconsistency between the applicant’s true intent when filing Form I-485 and the stated purpose of entry

Special note: Filing Form I-485 after entering on a B-1/B-2 visa, even after waiting more than 90 days, may still be deemed evidence of preconceived immigrant intent. This is expressly identified in the memorandum as a strong unfavorable factor and must be treated with great caution in practice.

(2) Favorable Factors

Based on the memorandum and practical experience in U.S. immigration law, the following table summarizes discretionary favorable factors into four levels for readers’ reference.

Policy threshold change: Under the old policy, an “ordinary” level of favorable factors plus legal eligibility was often enough for approval. Under the new policy, applicants likely need multiple “moderate” factors, and preferably “strong” or even “outstanding” favorable factors, to have a higher likelihood of approval.

(3) Overall Discretionary Conclusion

• No unfavorable factors does not mean automatic approval; the stronger and more numerous the favorable factors, the higher the likelihood of approval.
• Applicants with unfavorable factors are likely to face denial risk and should prepare remedial measures or alternative options in advance.
• USCIS must provide written explanations for denials, preserving room for later administrative appeal or judicial review.

5. Examples of Risk Combinations by Applicant Category

The following table provides a combined risk analysis for common filing scenarios, for reference only:

6. Response Strategies Based on Filing Status

(1) Form I-485 Already Filed and Pending

Although these applications were filed before the policy was issued, the memorandum indicates that they may still be affected in theory, and officers have the authority to apply discretionary review. Recommended actions include:

• Proactively organize and supplement favorable-factor evidence, including tax records (W-2s and tax returns), employer reliance support letters, and family relationship documents such as birth certificates and marriage certificates.
• Understand the consular processing (CP) procedure at the same time and evaluate the feasibility of this backup route in advance.
• Closely monitor whether an RFE or interview notice is received, and discuss response strategies with an attorney in advance.

(2) Currently in the United States but Form I-485 Has Not Yet Been Filed

Do not rush to file. Applicants should first complete the following steps:

• Retain an immigration attorney for a comprehensive risk assessment and a systematic review of personal favorable and unfavorable factors.
• Confirm whether the evidentiary threshold for “unusual equities” can be met, and file only after the supporting materials are well prepared.
• If the risk assessment indicates a high-risk case, seriously consider switching to consular processing (CP).

(3) Currently Outside the United States and Planning to Enter Before Filing Form I-485

This scenario is expressly identified in the memorandum as high risk, and the finding of preconceived intent is extremely difficult to avoid effectively.

• Reevaluate the feasibility of AOS based on the current visa category.
• Give priority to consular processing (CP) and confirm the immigrant visa process with an attorney as early as possible.

(4) General Recommendations for All I-485 Applicants

• Maintain lawful status: ensure that the visa remains valid, avoid overstay, and strictly comply with the permitted activities under the visa status.
• Avoid violations: any violation of federal or state law, including traffic violations or minor criminal issues, may become an unfavorable factor in discretionary review.
• Collect positive evidence: organize tax records, employer reliance letters, records of community involvement in the United States, proof of children’s schooling in the United States, family relationship documents, and similar evidence.
• Contact an immigration attorney as early as possible for a case-specific assessment, and do not rely on general online information as the basis for decision-making.

7. What Did the USCIS Spokesperson Say?

After the policy was issued, USCIS spokesperson Kahler publicly stated that the purpose of the policy adjustment is to close the loophole of “short-term entry with intent to change status.” Kahler also indicated that applications that can bring economic benefits to the United States or serve the national interest may likely continue to proceed under the existing pathway.

This statement is significant for EB-5 applicants. The legislative purpose of the EB-5 immigrant investor program is to attract foreign capital and create U.S. jobs. It naturally aligns with both “economic benefit” and “national interest,” and is highly consistent with the “outstanding” favorable factors discussed in the memorandum.

However, it is important to note that this statement was an oral comment, not formal written policy. It does not mean that EB-5 I-485 applications are automatically exempt from discretionary review under the new policy. In practice, attorneys must still conduct a case-by-case analysis of whether each EB-5 applicant’s favorable factors are sufficient. Applicants should not be blindly optimistic.

8. Conclusion

This USCIS policy adjustment has taken effect, and its far-reaching impact will likely become clearer over the coming months. As the memorandum itself indicates, the impact of the policy is not one-size-fits-all. Instead, it depends heavily on the applicant’s personal background, entry history, ties to the United States, and the overall weight of favorable factors.

Relatively speaking, applicants with immediate U.S. citizen family relationships, EB-5 investors who meet the economic contribution standard, and applicants who have long maintained lawful residence in the United States without unfavorable factors face more manageable risk. By contrast, applicants who entered on a B visa and then filed Form I-485, those with weak ties to the United States, and those lacking substantial favorable factors face an extremely high risk of denial and should seek professional legal advice immediately.

At present, the two most important preparatory steps are: first, to systematically strengthen evidence of favorable discretionary factors; and second, to evaluate and prepare a backup consular processing route in advance.

9. Outlook

It is worth noting that the tightening of I-485 discretionary review is not an isolated policy adjustment, but rather a reflection of the broader trend of stricter immigration enforcement. Since 2025, USCIS has shown an obvious tightening trend in multiple areas, including visa review, maintenance of status, and naturalization applications. The agency’s willingness to actively exercise discretion has increased significantly.

It is foreseeable that, for the near future, the era of “meeting the requirements means approval” is over. Whether through adjustment of status inside the United States or consular processing abroad, applicants must prepare materials to a higher standard and more clearly demonstrate both their immigration eligibility and the legitimate reasons supporting their application.

In a policy environment that continues to evolve, planning early and preparing in advance are more important than reacting passively. If you have questions about your own circumstances, you are encouraged to consult an experienced immigration attorney for a one-on-one evaluation as early as possible.

[This article is based on the USCIS policy memorandum dated May 21, 2026 (PM-602-0199). Immigration policy continues to change. Please refer to the most recent official guidance.]