On May 22, USCIS issued Policy Memorandum PM-620-1099, introducing a heightened discretionary standard for adjustment of status applications filed under INA Section 245. While the memo has generated significant discussion in the immigration community, no formal rescission has been issued and the policy remains in effect as written. This post analyzes the key risk factors the memo introduces and what they may mean for employment-based and family-based applicants with pending or upcoming I-485 filings.
A quick snapshot of the three risk tiers
Higher risk
EAD-only employees
- No active H-1B, L-1, or other nonimmigrant status
- Filed under INA 245(k)
- Any overstay or unauthorized work history
- Criminal history of any kind
Watch closely
Single-intent visa holders
- Filed from B-1/B-2, F-1, O-1, TN, or R-1 status
- Had a gap in status before filing
- Unable to demonstrate consular processing hardship
Lower risk
Dual-intent status holders
- Active H-1B or L-1 maintained throughout
- U.S. citizen spouse or children in the household
- Clean record, consistent employment history
How may officers weigh cases: the totality of the circumstances
Under the memo, officers may go beyond whether an applicant qualifies on paper and conduct a broader discretionary review. Based on reports from the field, some officers have been asking — in RFEs and at interviews — why the applicant chose to adjust inside the United States rather than apply for an immigrant visa abroad. The factors officers may be instructed to consider appear to break down as follows.
Possible adverse factors
- Violations of immigration law or prior status conditions
- Fraud or false testimony with any government agency
- Conduct inconsistent with nonimmigrant or parole status purpose
- Failure to depart after admission purpose was accomplished
- Applying for AOS where consular processing is available
- Preconceived intent to immigrate
Possible positive factors
- U.S. citizen or LPR spouse or children, especially where separation may cause hardship
- Long-term lawful presence: employment history, tax records, civic involvement
- Good moral character: no criminal history, charitable and professional contributions
- Demonstrated U.S. economic benefit: employer sponsorship, specialized skills
- National interest considerations
Important threshold: The memo appears to state that the mere absence of adverse factors may not be enough on its own. To overcome any adverse factor — such as an overstay, a status violation, or preconceived intent — an applicant may need to demonstrate unusual or even outstanding equities.
A deeper look at each tier
Higher risk:
Employees working solely on EAD with no underlying nonimmigrant status
This may be the population with the most to lose regardless of how the memo ultimately resolves. When an employee’s only work authorization flows from a pending I-485, a discretionary denial may not just mean a delayed green card — it could mean removal proceedings. Under this framework, a period of authorized stay while an I-485 is pending may not be treated the same as maintaining a nonimmigrant status. If the application is denied and there is no H-1B, L-1, or other valid status to fall back on, the individual could potentially accrue unlawful presence and become removable.
The concern may compound when the I-485 was filed under INA 245(k), which allows adjustment despite certain status violations if the gaps were brief. The memo appears to treat those very gaps as adverse discretionary factors — meaning an officer could weigh the same violations that Congress said should not be an absolute bar as strikes against a favorable exercise of discretion. That is a potentially meaningful shift, and one that may not disappear simply because some field offices have gone quiet.
Any prior arrest or criminal history, even without a conviction, could add another layer of exposure. The memo appears to call out conduct inconsistent with the purpose of the applicant’s original admission as a relevant consideration. It may be worth proactively identifying which employees fall into this category and discussing contingency planning with their attorney before adjudication arrives.
Watch closely:
Applicants who filed from single-intent visa categories
This tier may be more nuanced and, in some ways, harder to predict. Someone who entered on an F-1, B-2, O-1, TN, or R-1 visa carries an inherent tension: those categories come with either an explicit nonimmigrant intent requirement or a strict purpose-of-admission condition. Filing an I-485 from one of these statuses is entirely lawful and common — but the memo may treat conduct inconsistent with the visa’s purpose as an adverse factor, and the decision to adjust rather than consular process could itself be a factor worth scrutinizing.
The potential concern in this tier is not what happened after the I-485 was filed — once the application is pending, unlawful presence is tolled, so a subsequent program end date or admission expiration would not accrue unlawful presence against the applicant. The focus may instead be on what happened before filing. If there was a gap between the expiration of the applicant’s prior status and the date the I-485 was submitted, that gap may represent unlawful presence already in the record — and one that officers could weigh under this framework. This is worth discussing carefully with your attorney.
Lower risk:
Dual-intent status holders with maintained status and strong U.S. ties
The least exposed position under this framework may be one that was already considered best practice: maintaining a valid dual-intent nonimmigrant status — H-1B or L-1 above all — throughout the pendency of the I-485. These categories carry no nonimmigrant intent requirement, meaning the act of filing for a green card is not legally inconsistent with the visa’s purpose. An officer applying a totality-of-circumstances analysis may have fewer adverse factors to weigh against an H-1B holder with continuous status, a U.S. citizen spouse, and a clean record.
That said, even this tier may not be entirely without exposure. The memo appears to note that maintaining lawful status in a dual-intent category may not, on its own, be sufficient to warrant a favorable exercise of discretion. H-1B status could be treated as one positive factor among many rather than an automatic pass. For most straightforward employment-based cases with stable employment history and no adverse factors, the practical risk may remain low — but any case carrying an unusual wrinkle warrants a careful conversation with your attorney before adjudication lands.
The key risk the rollback may not erase: A denial — even under a policy that may soon be formally withdrawn — could trigger removal proceedings if the applicant has no underlying nonimmigrant status. Cases already flagged at interview may not be automatically cleared by the agency’s informal retreat.
Filing strategy:
Why it may be worth filing your I-130 or I-140 indicating consular processing — even if you plan to adjust
One underappreciated planning consideration in the current environment: when filing an I-130 or I-140 petition, indicating consular processing as the intended route rather than adjustment of status — even if the beneficiary ultimately plans to file an I-485 — may preserve important flexibility. Under current USCIS policy, when an I-485 is later filed, the agency will automatically transfer the underlying petition from the National Visa Center to USCIS without requiring a separate I-824 application.
If instead the petition is filed indicating adjustment of status and the I-485 is later denied — or if consular processing turns out to be the better path — an I-824 would need to be filed to transfer the petition back to the NVC. That means extra time, extra fees, and extra delay at exactly the moment when options matter most. Indicating consular processing upfront may preserve flexibility at no added cost. The one thing to keep in mind: staying in contact with the NVC at least once a year may help ensure the petition is not administratively closed while the I-485 is pending.
Things worth discussing with your attorney now
- If your only work authorization is an EAD tied to a pending I-485 and you have no nonimmigrant status to fall back on, it may be worth understanding what a denial could mean beyond the green card itself.
- For cases not yet filed, your attorney may recommend indicating consular processing on the I-130 or I-140 and preparing a package that documents positive equities alongside the I-485.
- Consular processing may be worth discussing as a contingency with your attorney — keeping in mind that adjustment of status offers certain protections that consular processing does not.
The bigger picture
The memo’s legal foundation remains contested and litigation appears likely regardless of how the agency proceeds informally. Until USCIS issues a formal rescission or updated policy manual guidance, the standard introduced on May 22 may remain in effect. The agency’s silence is not a safe harbor — and for those who may fall in the higher-risk tiers, treating this as fully resolved could be premature.
This post is for informational purposes only and does not constitute legal advice. Individual circumstances vary; contact your immigration attorney for case-specific guidance.
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