USCIS Discretion Memo: Plan for Your Pending Green Card

USCIS Discretion Memo: A Practical Plan If Your Green Card Case Is Already in Progress

Your green card application was ready to file. The evidence was gathered, the forms were complete, the consultation was done. And then, on May 21, 2026, USCIS issued Policy Memorandum PM-602-0199. The next day, the agency’s press release announced that adjustment of status would be granted “only in extraordinary circumstances.” If you are reading this, you are probably wondering whether to file now, hold the case, or start over.

This article is for you. It is not an attempt to convince you the new policy is right or wrong; reasonable lawyers disagree about that and the courts will sort it out in due course. It is a practical plan for handling a case that was already prepared when the memo dropped, written from the perspective of a firm that had several such cases on its desk that week. The plan has two phases: file an appropriately responsive package now to get the clock running on your interview, and use the months before that interview to build the strongest possible record of the discretionary equities the memo asks the officer to weigh. The point of this article is to help you understand both phases and the role your own self-assessment plays in them.

Update, October 2026. Two developments since this article was written. First, on August 5, 2026, USCIS changed its evidence policy (Policy Alert PA-2026-05): when an application arrives without all the initial evidence the regulations and form instructions require, officers may now deny it without first sending a request for evidence or a notice of intent to deny, and the policy applies to cases already pending. The plan below assumes a complete filing — every required form and document — with only the discretionary equities built out afterward; it does not mean filing with required evidence missing. In our experience so far, the policy is aimed at filings that are deficient on their face — for example, an application filed before the applicant was eligible — and we have not seen a discretionary denial issued on the papers before an interview. Second, PM-602-0199 and the August 5 evidence policy are now being challenged in federal court (American Association of University Professors v. Mullin, No. 1:26-cv-14527 (D. Mass., filed Oct. 5, 2026)).

What changed on May 21, 2026 — and what didn’t

PM-602-0199 is an internal USCIS policy memorandum. It is guidance to the agency’s adjudicating officers about how to exercise discretion when deciding adjustment of status applications — the path most people inside the United States use to obtain a green card. The memo tells officers that adjustment of status is a discretionary benefit, not an automatic outcome, and that officers should weigh both positive and negative factors in every case.

What the memo did not do is just as important. It did not amend the Immigration and Nationality Act. It did not eliminate any green card category. It did not change the statutory exemptions Congress wrote for the spouses and parents of U.S. citizens. It did not displace decades of Board of Immigration Appeals decisions — most importantly Matter of Arai, 13 I&N Dec. 494 (BIA 1970) — that have governed how discretion is exercised in adjustment cases for more than fifty years. The framework collected in the agency’s own Policy Manual at 7 USCIS-PM A.10 still controls. What changed is the emphasis: officers are now being told to apply the discretionary inquiry as a live, dispositive question in every case, not as a formality.

The press release used the phrase “only in extraordinary circumstances.” That phrase does not appear in the operative text of the memo itself. The memo directs case-by-case discretionary weighing, which is meaningfully different from a categorical bar. The gap between the public framing and the actual instruction is, in our reading, one of the most important practical facts about this development — and it is the gap that makes the response below possible.
For the full picture of how a green card case works from filing to interview, start with our adjustment of status guide.

That expansion of discretion has now reached public charge as well — our article on the public charge rule taking effect September 18 explains what changed.

Why this matters more if your case was already prepared

If you had not yet started a green card case, you have time to build a complete, equities-forward filing from scratch. If your case was already prepared, you face a different problem: the package you spent months assembling responded to the legal landscape that existed before May 21, and now needs to respond to a landscape that did not exist when the work was done. You have two competing pressures.

On one hand, delay has a real cost. The wait for an in-person adjustment interview at the USCIS Helena field office was about four to five months from filing when this article was written in June 2026. (Processing times are a snapshot; they change constantly, and we do not update articles to track them — before making decisions, check the current time for your form and office at egov.uscis.gov/processing-times.) Every week the case sits on your desk is a week added to the back end. For applicants in valid nonimmigrant status, that delay may be tolerable. For applicants whose status is about to lapse, who need work authorization documents to keep their jobs, or who have time-sensitive personal circumstances, it can be acutely expensive.

On the other hand, filing without addressing the new memo is unwise. Even a strong case looks unprepared if it does not acknowledge the discretionary framework the officer has been told to apply. Adding an entire equities-development effort to an already-prepared case before filing can take months, and meanwhile the interview clock is not running.

This weighs especially on former exchange visitors who overstayed, whose time out of status now draws harder discretionary scrutiny.

The two-phase plan

Phase 1 — At filing: a defensible response, not a perfect one

The goal at filing is not to win the case. The goal at filing is to (a) get the interview clock started, and (b) make sure the file does not look as if it ignored the memo. Three things accomplish this, and they can be done in the time it takes to finish preparing a case that was already nearly ready.

• A cover letter that names the memo and the framework. Your attorney addresses PM-602-0199 directly in the cover letter, names the still-controlling authorities (the statute, Matter of Arai, and the Policy Manual framework), and identifies the affirmative equities that justify a favorable exercise of discretion in your specific case. This belongs in the attorney’s voice, not yours.
• Your own declaration, updated to speak to the discretionary framework. If your case is a marriage case, your declaration should center the bona fides of the relationship and the hardship to your U.S.-citizen family members from the alternative of consular processing. If your case is an employment-based case, it should speak to the lawful pathway Congress created and the years of compliant work that brought you to this point.
• A supporting letter from your U.S. citizen spouse or your U.S. employer. In a marriage case, a brief letter from your U.S.-citizen spouse describing the relationship and the hardship of separation. In an employment case, a letter from the petitioning employer describing the specific cost to the business of losing your services for the duration of consular processing. The employer letter, in particular, is often the strongest single piece of evidence in an EB filing.

None of these takes long when the rest of the case is already prepared. None of them turns an ordinary filing into an exceptional one. They do something more modest and more important: they make sure that when the officer opens your file, the file already speaks the language the officer has been told to listen for.

Phase 2 — Before the interview: build the equities case

The serious equities work happens between filing and the interview. You will typically have several months. That is enough time to gather the documentation, draft the supporting letters, organize the photographic and financial evidence, and prepare both you and your spouse (or you and your employer) to speak to the discretionary factors at the interview. By the time you walk into Helena, the officer will already have read the package you filed and will be looking for the specifics. The interview is where the affirmative equities case is actually made.

Two-phase thinking matters because it inverts the natural anxiety. The natural reflex when something changes is to delay everything and rebuild the whole package. The better move, in our view, is to file what you have with the minimum responsive additions, get the clock started, and then use the time you would have lost to delay to build a much stronger case for the moment when it actually counts: the interview.

Self-assessing your equities: the checklist

The 7 USCIS-PM A.10 framework groups discretionary factors into four categories. You can self-assess your case against each category before your next conversation with your attorney. None of this is legal advice — it is fact-gathering. The point is to walk into the conversation with a clear list of what is in your favor, what is against you, and what documentary evidence exists for each.

Category 1: Family and community ties

• U.S.-citizen or lawful permanent resident spouse, children, or parents — list each by name, relationship, and status.
• Length of your lawful residence in the United States (years, with status held at each point).
• Hardship to your U.S. family if you were required to depart — be concrete (medical, financial, caregiving, country conditions if applicable).
• Ties to a specific community — church, school, neighborhood, volunteer organizations.

Category 2: Immigration history and status compliance

• Every status you have held in the U.S., with start and end dates, including any periods out of status.
• Any periods of work without authorization, even brief.
• Any prior denied or withdrawn immigration application, any visa refusal, any prior removal order — executed or unexecuted.
• Any prior fraud or false-statement issue, no matter how minor it seemed at the time.

Category 3: Work, skills, and economic contribution

• Employment history in the U.S. — employer, role, dates, and whether any unauthorized periods occurred.
• Education and specialized skills — degrees, professional licenses, certifications.
• Property or business ties — home ownership, business operation, U.S. investments.
• Tax compliance — every year you have been required to file, whether returns were filed and taxes paid.

Category 4: Community standing and character

• Any arrests, charges, or convictions anywhere in the world, even those that were dismissed or sealed.
• Cooperation with law enforcement, military service, formal community recognition.
• Volunteer work or community service beyond anything required by a court.
• Letters of recommendation you can credibly request from employers, clergy, teachers, neighbors, and community leaders.

To see exactly what the FBI holds on you before you list it, request your own record; our post on continuous vetting of immigration applicants walks through the steps.

What goes in the filing now

Out of your self-assessment, your attorney will identify the three to five strongest positive factors and any negative factors that need to be addressed. The filing-stage package responds to those, with evidence behind each claim. The principle is document, do not assert. An officer reading “my marriage is genuine” is unmoved; an officer reading the same claim supported by a joint lease, a joint bank statement, joint health insurance, photographs across the relationship’s timeline, and an affidavit from someone who knows the couple is in a different posture entirely.

For a marriage-based green card case, the filing-stage package typically includes:

• An updated applicant declaration centered on the bona fides of the marriage, the U.S.-citizen spouse and any U.S.-citizen children, and the hardship of separation.
• A short letter from the U.S.-citizen spouse, in their own words.
• The bona fide marriage evidence the case already gathered — joint financial documentation, lease or mortgage, joint insurance, photos.
• A clean cover letter that names PM-602-0199, the immediate relative carve-outs in INA §245(c), and the equities the file documents.

For an employment-based green card case, the filing-stage package typically includes:

• An updated applicant declaration emphasizing the unbroken record of lawful nonimmigrant status, tax compliance, and the years of investment by the U.S. employer.
• A letter from the petitioning employer describing the specific cost of losing the worker for the duration of consular processing — months of lost services, projects affected, clients at risk, the cost of recruiting and training a replacement, and why a quick replacement is impractical in this market.
• A clean cover letter that names PM-602-0199 and its footnote 20 — which says that lawful status in a dual-intent category is not enough, on its own, to warrant a favorable exercise of discretion — recites what the record already shows (the certified PERM, the approved I-140, and a current priority date), and identifies the employer-hardship equities that answer that footnote directly.

The same logic — file a defensible response now, build the full equities record for the interview — applies to other discretionary adjustment categories as well. Asylee adjustment under INA §209(b), for example, is discretionary by the statute’s own terms even though the underlying timing dynamics differ, and the same two-phase approach fits.

What to build for the interview

In the months between filing and the interview, build the supplemental record that turns a defensible file into a persuasive one. The list is longer than what goes in at filing, and is the work that often takes the case from approval-likely to approval-without-friction.

• Affidavits from family, friends, neighbors, and (in marriage cases) the U.S.-citizen spouse’s family who have observed the relationship.
• A letter from a physician or pediatrician, where the case turns on the health or care of a U.S.-citizen family member.
• Where the applicant’s own health is at issue, the record described in our guide to the public charge health factor.
• A complete set of joint financial records — bank statements, lease or mortgage, joint insurance, joint tax returns — organized chronologically.
• Letters of professional recommendation from supervisors, colleagues, or clients, where the case turns on the applicant’s work.
• Photo evidence organized as a timeline — meeting, dating, engagement, wedding, life together, children.
• Documentation of community involvement — volunteer hours, charitable contributions, church or temple membership, school involvement for any U.S.-citizen children.
• A pre-interview meeting with your attorney to walk through the discretionary factors and prepare you (and, in marriage cases, your spouse; in EB cases, an employer representative if appropriate) for the interview questions you can expect.

Some of these items are quick to obtain. Others — pediatrician letters, formal recommendation letters, organized photographic timelines — take weeks to produce well. Starting them at filing rather than waiting until the interview notice arrives is the difference between an interview with the full record on the table and an interview where the file is still being assembled.

When this approach is the right one — and when it is not

Two-phase thinking is right for cases that were ready or nearly ready when the memo dropped, where the legal eligibility is clean and the discretionary case is strong but undocumented. Most marriage cases and most employment-based cases with compliant status histories fit this profile. So do many asylee adjustments where the underlying asylum grant provides much of the affirmative equity.

Two-phase thinking is not the right approach for cases with serious problems — a meaningful criminal history, prior fraud or misrepresentation, a current or prior removal order, long periods of unauthorized work, or an undisclosed false statement on a prior immigration form. Those cases need full attorney evaluation before anything is filed, because the discretionary calculus, the admissibility analysis, and the consular-processing comparison all change. The interview-day equities are not what saves them; the legal posture established at filing is.

The cases in the middle — where there is a single overstay, a brief period out of status, or a prior visa refusal — are judgment calls. They can usually be addressed under the two-phase framework, but the attorney conversation matters more than in the clean-case versions.

Working with an attorney

If you have a case that was ready to file when the memo dropped, you are working under a particular kind of time pressure: every week you spend rebuilding the package from scratch is a week added to the interview wait. The realistic alternative is a focused conversation with your attorney that produces three things in a single afternoon: a clear list of your strongest discretionary equities based on the self-assessment above, a list of the documents that prove them, and a plan for what gets filed now versus what gets gathered for the interview.

If you do not yet have an attorney and you are in the Rocky Mountain West, we serve clients across Montana, North Dakota, Wyoming, Utah, Idaho, and Colorado. We were preparing several marriage and employment-based adjustment cases when PM-602-0199 was issued, and we developed the two-phase framework described in this article in response to that exact problem. We are continuing to refine it as cases move through. If you would like to discuss your own case, you can reach Immigration Law of Montana, P.C. through the contact page on our website.