USCIS's May 2026 memorandum treats adjustment of status as extraordinary discretionary relief. A delay suit can still force a decision, but the decision it forces may now be harder to win.
On May 21, 2026, USCIS issued Policy Memorandum PM-602-0199. Its title states its thesis: adjustment of status is a matter of discretion and administrative grace, and an extraordinary form of relief that lets an applicant skip the ordinary consular visa process. The memorandum does not change who is eligible. It changes how officers are told to use the discretion that the statute already gives them. For anyone weighing a delay suit over a stalled Form I-485, that difference matters.
What the memorandum says
The adjustment statute, 8 U.S.C. § 1255(a), provides that an eligible person may be adjusted by the Secretary "in his discretion". The memorandum relies on that wording and on Matter of Blas, 15 I&N Dec. 626 (BIA 1974), to describe adjustment as an act of grace rather than an entitlement. It directs officers to weigh positive and negative equities, including immigration history and conduct after admission, even when every statutory requirement is met. It also states that the absence of adverse factors does not, by itself, show the kind of unusual or outstanding equities it describes.
Two limits appear in the memorandum itself. It acknowledges that filing for adjustment is not inconsistent with maintaining status in a dual-intent category such as H-1B or L-1, although it adds that such status alone is not enough to earn a favourable exercise of discretion. And it treats categories in which adjustment is the only path to permanent residence differently from the general presumption in favour of consular processing.
What a delay suit can and cannot do
A mandamus or APA delay claim compels a discrete action the agency is required to take. The duty to decide an application within a reasonable time is enforceable; the content of the decision is not. That has always been true, and it is the point of the limits on the writ. The memorandum makes the point practical. A suit that ends a long wait may now end it with a denial grounded in discretion.
Review of that denial is narrow. 8 U.S.C. § 1252(a)(2)(B)(i) bars judicial review of "any judgment regarding the granting of relief" under the adjustment statute, and the Supreme Court read that language broadly in Patel v. Garland, 596 U.S. 328 (2022). Constitutional claims and questions of law are preserved by § 1252(a)(2)(D) on a petition for review, and USCIS regulations allow a denied adjustment application to be renewed before an immigration judge if removal proceedings begin. Neither route reopens the discretionary weighing in the way a merits appeal would.
Building the record before compelling the decision
Because the officer will weigh equities, the file should contain them before a court orders a decision: family ties, length of residence, employment, tax compliance, community involvement, and an explanation of any adverse fact the officer is likely to find. A complaint filed on a thin file can produce a fast denial. The approach is examined at length in I-485 Mandamus and the PM-602-0199 Discretion Memo.
The memorandum also matters for applicants who might be redirected abroad. A person who cannot adjust and must process through a consulate may need a provisional unlawful-presence waiver first; see I-601A Mandamus. Investors whose petitions are already approved face the same discretionary review at the adjustment stage; see I-485 Mandamus After an Approved EB-5 Petition.
Challenging the memorandum itself
A delay suit is not a vehicle for attacking the memorandum. A challenge to the policy would be framed under 5 U.S.C. § 706(2), for example as a rule adopted without notice and comment or as action contrary to the statute, and would raise the questions discussed in Compel or Set Aside?. Whether such a challenge succeeds is a separate matter from whether an individual application has waited too long.
Key points
- PM-602-0199 (May 21, 2026) describes adjustment of status as discretionary, extraordinary relief; it does not change eligibility.
- A delay suit compels a decision, not an approval. Under the memorandum, a compelled decision may be a discretionary denial.
- 8 U.S.C. § 1252(a)(2)(B)(i), read broadly in Patel v. Garland, sharply limits review of discretionary adjustment denials.
- The equities should be in the file before a court orders USCIS to decide.
- Attacking the memorandum is a § 706(2) question, separate from the individual delay claim.
Links in this article to Mandamus.com point to the site of a law practice in the same network as this publication. They are identified here so that the reader can tell a publication from a practice before following them; see the editorial policy.