Don't Let the Headline Fool You — The AOS Memo Is Still the Law

Last weekend I received emails from clients who thought the fight was over. The New York Times published an article, headlines declared DHS was walking back its adjustment of status memo, and people exhaled.

The memo is still in effect.

A press clarification is not a rescission. Until PM-602-0199 is withdrawn by USCIS or vacated by a court, every USCIS officer adjudicating an I-485 is operating under it. We are already seeing it in interviews. Nothing has changed for pending cases.

What the NYT article actually said — and what it didn't.

The DHS spokesperson told the Times the memo was intended to "remind" officers of existing policy, not create new restrictions. That statement is not binding adjudicative guidance. It does not appear in any USCIS instruction to officers. It does not amend or withdraw the memo. The memo's text is what officers apply.

The 56-year rule PM-602-0199 violates: since Matter of Arai, 13 I&N Dec. 494 (BIA 1970), the law has been clear — where no adverse factors are present, adjustment of status will ordinarily be granted. That standard is binding BIA precedent, binding on USCIS.

What PM-602-0199 does is take the exception — the discretion that existed for truly extraordinary cases with real adverse factors — and apply it to everyone. It inverts that standard. That is not a reminder of existing law. It is a reversal of it.

INA § 245(a) says the Secretary may adjust status if the applicant is admissible and eligible. It does not require applicants to demonstrate "extraordinary circumstances." Congress did not write that language. USCIS cannot insert it by memorandum. Post-Loper Bright, courts review agency interpretations of statutory text independently — and an interpretation that grafts a new approval standard onto a statute that does not contain it will not survive scrutiny.

The APA problem is equally clear. The memo creates a substantive change in the adjudicative standard without notice-and-comment rulemaking. A policy memorandum is not a rule.

The real-world harm: costs, delays, denials — and no meaningful appeal.

Even if every officer applied the memo exactly as its text says — weighing positive and negative factors and approving where positive factors predominate — the memo still creates harm. More scrutiny means more interviews. More interviews mean more RFEs. More RFEs mean more attorney time, more costs, more delays for applicants and employers who have already invested years in this process.

The deeper problem is the discretionary standard itself. The memo directs officers to treat the applicant's choice to pursue adjustment — a pathway Congress authorized — as an adverse factor. It explicitly lists "conduct inconsistent with nonimmigrant status" as a negative consideration. That sweeps in applicants who experienced brief gaps in status that Congress already addressed through INA § 245(k), which provides that employment-based applicants are not barred by violations totaling 180 days or fewer after their most recent lawful admission. Those individuals invoked a Congressional accommodation. The memo now tells officers to hold that against them in the discretionary analysis.

When an officer exercises discretion to deny, under Patel v. Garland, 596 U.S. 328 (2022), federal courts of appeals cannot review the factual findings underlying that denial. Courts retain jurisdiction over pure questions of law and constitutional claims, but the factual discretionary call is unreviewable. There is no AAO appeal for discretionary denials. For most applicants facing a discretionary denial, the path to judicial review is narrow at best.

The only path forward USCIS offers is consular processing via an I-824 — which can take over a year — with work authorization in limbo, employers unable to wait, and the real possibility of removal proceedings if ICE gets involved in the interim. For nationals of the 19 fully-banned countries under Presidential Proclamation 10998, or applicants affected by the State Department's 75-country immigrant visa freeze, that path does not even exist.

That is not a theoretical chain of events. It is what happens when these denials occur in the current enforcement environment.

The memo should not apply where consular processing is not an option.

The memo's entire framework presumes consular processing is viable. It is built around the premise that the applicant is choosing adjustment over a consulate. For applicants from countries subject to the travel ban — where both immigrant and nonimmigrant entry may be suspended — and for asylum holders who cannot return home, the memo's premise is false. The argument that the memo does not apply, or applies with dramatically reduced weight, needs to be made affirmatively at every interview and in every RFE response for these applicants.

The bottom line.

The backtrack in the press changes nothing. The law and the memo are exactly where they were the day it issued. The only real protection from PM-602-0199 comes from a court ordering USCIS to follow the law as Congress wrote it and as the BIA interpreted it for more than five decades. That litigation is underway, and we will keep fighting it.

In the meantime: do not travel without speaking to your attorney. If you have a pending I-485, prepare to demonstrate your positive equities at your interview — your U.S. citizen family, your employment record, your tax compliance, your community ties, your clean record. Document everything. The memo is in effect and officers are applying it. Be ready.

Michelle Canero is Managing Partner of Canero Fadul Reis PLLC, among the top PERM filers in Florida by case volume per DOL registry data. For consultations: forms.canerofadul.com/242534922407960