The NYT Headline Is Wrong. The Memo Is Still in Effect.

This past weekend, I received a flood of emails from clients. Everyone was relieved. Everyone thought the fight was over. The New York Times published an article and the headlines made it sound like DHS was backing down on the adjustment of status memo.

That is not what the article says. And this is exactly why you cannot just read headlines.

The memo is still in effect. A press clarification is not a rescission.

Until PM-602-0199 is withdrawn or struck down by a court, USCIS officers are applying it — and we are already seeing it in interviews. Nothing has changed for your case.

So what did the NYT article actually say? DHS told a spokesperson the memo is meant to "remind" officers of existing policy, not create new restrictions. That statement is not binding on anyone. It is not a revision to the memo. It does not appear in any adjudicative instruction. The officer sitting across from your client at their I-485 interview has PM-602-0199 on their desk. They do not have a newspaper quote.

Here is the actual legal problem with this memo.

For fifty-six years — since Matter of Arai, 13 I&N Dec. 494 (BIA 1970) — the law has been clear: if you are eligible to adjust and you have no inadmissibility, adjustment of status will ordinarily be granted. That is the standard. Discretion in the statute was designed for edge cases — someone with a truly complicated record, real adverse factors — where even though the person is technically eligible and has no grounds of inadmissibility, the circumstances were so extraordinary that officers needed the ability to deny. That was always the exception, not the rule.

What this memo does is take that exception and apply it to everybody. It flips the standard completely. Now, instead of "eligible and admissible means ordinarily approved unless there is a reason to deny," we are being told adjustment is only for "extraordinary circumstances." Think about what that actually means. The majority of people who file for adjustment of status are eligible. They qualify. They are not walking in with criminal records and fraud histories. So if most applicants have more favorable factors than negative ones, how is it "extraordinary" when they get approved? It makes no sense. And it tells me we are going to see inconsistent adjudications, because the memo is all over the map on this.

The statutory problem is equally clear. 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. Under Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), 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 memo also has a critical flaw that is being overlooked.

The memo is written around the premise that consular processing is a viable option. For clients subject to the travel ban under Presidential Proclamation 10998 — which fully suspends both immigrant and nonimmigrant visa entry for nationals of 19 countries, and partially suspends immigrant visas and certain nonimmigrant visa categories (B, F, M, and J) for nationals of an additional 20 countries — consular processing is not an option. For asylum applicants, returning to their home country is not an option. The memo's own logic should exempt these applicants. That argument needs to be made at every interview and in every RFE response.

And here is what nobody is talking about: the denials are not appealable.

In Patel v. Garland, 596 U.S. 328 (2022), the Supreme Court held that federal courts of appeals lack jurisdiction to review factual findings underlying a discretionary denial of adjustment of status. That means if an officer decides the balance of factors does not favor your client — even if your client is eligible, admissible, has no criminal record, pays taxes, and has U.S. citizen children — there is no appeal on the facts. Courts can still review pure questions of law and constitutional claims, but the factual discretionary determination itself is unreviewable. You cannot go to the AAO. For most applicants facing a discretionary denial, the door closes.

What happens next? USCIS says: go to a consulate. But converting to consular processing after a denial requires filing an I-824, which can take well over a year to process. During that entire time, your client's work authorization is in limbo. Their employer cannot wait indefinitely. Their family is separated. And if ICE gets involved, they may be looking at a Notice to Appear and removal proceedings, where voluntary departure — already harder to obtain than it used to be — becomes their only off-ramp.

This is not a theoretical problem. These consequences are real, they are happening now, and the backtrack in the press does not change any of it.

The only way this memo gets vacated is through the courts.

A press spokesperson's comments do not change the law. They do not change what USCIS officers are doing in interview rooms today. The only real protection comes from a court ordering USCIS to follow the law as written by Congress and as interpreted by the BIA in Matter of Arai for more than five decades. That is what we are fighting for. And we are going to keep fighting until we get it.

In the meantime, do not travel without speaking to your attorney first. If you have a pending adjustment case, prepare to defend your eligibility at your interview. Document your positive factors: your U.S. citizen children, your employment, your tax compliance, your community ties, your clean record. The memo is still there. The standard has changed at the officer level. Be ready.

Michelle Canero is Managing Partner of Canero Fadul Reis PLLC, a Miami-based business immigration law firm and among the top PERM filers in Florida by case volume per DOL registry data. For consultations: forms.canerofadul.com/242534922407960