USCIS Says Adjustment of Status Is Discretionary: What EB-3 and F-1 Applicants Should Know

Key Takeaways

• USCIS reaffirmed on May 21, 2026 that adjustment of status under INA § 245 is a discretionary benefit, not an entitlement.
• Meeting the technical eligibility for Form I-485 is no longer enough on its own. Officers will weigh positive and negative factors.
• Overstays, unauthorized employment, status violations, and parole-based entries will get heavier scrutiny.
• EB-3 unskilled (EW-3) applicants should expect closer review of nonimmigrant history and any gaps in status while the priority date was waiting.
• F-1 students adjusting status need to keep F-1 status valid through I-485 filing, avoid unauthorized work, and document a credible change of intent.
• Document positive equities up front: lawful conduct, family ties, stable lawful employment, community ties, and good moral character.

On May 21, 2026, USCIS released Policy Memorandum PM-602-0199. The title is long, but the message is short: adjustment of status is a privilege, not a right.

If you are in our EB-3 unskilled (EW-3) program, or you are an F-1 student planning to adjust status from inside the United States, this is worth a few minutes of your time. The law did not change. The way USCIS officers are being told to look at your case did.

What the memo actually says

The memo reminds officers that adjustment of status under INA § 245 is, in the agency's own words, a matter of "discretion and administrative grace." It calls adjustment an extraordinary relief that lets you become a permanent resident without leaving the United States for consular processing.

USCIS is not eliminating adjustment of status. The statute is intact. You can still file Form I-485 when the law allows it. But officers are being told to look harder at whether you deserve a favorable exercise of discretion, not just whether you check the eligibility boxes.

What changed in practice

Before this memo, many applicants treated adjustment of status as a near automatic step once the priority date was current and the I-140 was approved. That framing is gone.

Going forward, USCIS officers are expected to weigh the totality of the circumstances, including both positive and negative factors. The memo singles out a few things as especially relevant:

• Whether you maintained lawful immigration status
• Whether you complied with the conditions of your admission or parole
• Whether you engaged in unauthorized employment
• Whether you made inconsistent statements to consular or immigration officers
• Whether there is any fraud, misrepresentation, or other negative history
• Whether you failed to depart the United States when you were expected to
• Whether you could have done consular processing abroad instead

USCIS specifically calls failing to comply with the conditions of your nonimmigrant admission or parole, and failing to depart on time, "highly relevant" to the discretionary analysis.

Who this affects most

For EB-3 unskilled applicants, the long wait between PERM filing and a current priority date means a lot of life happens in between. The memo tells officers to look closely at what happened during that wait. If your record is clean, your filing should hold up — but expect closer review.

The people who need to pay the most attention are applicants whose history includes any of the following:

• Visa overstays, even short ones
• Unauthorized employment, including informal or cash work
• Status violations or expired statuses bridged by other filings
• Prior inconsistent statements at a consulate or port of entry
• Parole-based entries
• A change of intent after entering on a nonimmigrant visa (this is the central F-1 issue — see below)
• Cases where consular processing was a clear option but was not used

If you are an EB-3 unskilled (EW-3) applicant inside the U.S.

Most of our EW-3 clients fall into one of two buckets when the priority date becomes current: people who never left the U.S. after their first entry, and people who came in on a nonimmigrant visa (F-1, B-1/B-2, TN, etc.) and want to file I-485 once eligible. Both groups need to take the discretionary piece seriously.

• Keep your current status valid. If you have an underlying nonimmigrant status, do not let it lapse before your I-485 is filed. Gaps in status are exactly what an officer is now being told to scrutinize.
• Do not work without authorization. This is the single biggest avoidable problem we see. Unauthorized employment — including cash jobs, side gigs, or starting the sponsor job before your EAD is in hand — is a serious negative factor. Wait for your work authorization.
• Be consistent about your intent. If you entered on a tourist or student visa years ago and later joined the EB-3 program, your story needs to be honest and consistent. Do not embellish travel history or sponsorship timelines.
• File taxes, every year. Tax compliance is one of the cleanest positive equities to document. If you have an SSN or ITIN, file.

If you are an F-1 student adjusting status

F-1 students are the largest group of EB-3 applicants filing I-485 from inside the United States, so this section deserves extra attention.

F-1 is not a dual-intent visa. That is the heart of the issue. When you got your F-1, you told a consular officer (or a port-of-entry officer) that you intended to return home after your studies. Filing for permanent residence is a change of intent. The memo gives officers a clearer mandate to look at when that intent changed and whether you behaved consistently with F-1 status in the meantime.

The most common things that turn into RFEs or denials for F-1 adjusters:

• Status lapse before I-485 filing. Keep your F-1 (and your I-20) valid right up to the moment your adjustment is filed. Do not drop below a full course of study without proper authorization. Do not let your program end date pass without a plan (graduation + OPT, transfer, or timely I-485 filing).
• Unauthorized employment. F-1 work rules are strict. On-campus work is generally fine within the rules. Off-campus work without proper CPT or OPT authorization — including remote work for a foreign or U.S. employer, paid social media, freelance, or starting your sponsor's job before your EAD arrives — is unauthorized employment. USCIS officers will now treat this as a meaningful negative factor under the new guidance.
• CPT and OPT misuse. CPT must be integral to your program of study. OPT must match your field. Day-1 CPT programs, or CPT used for a job unrelated to your degree, are heavily scrutinized. If your CPT or OPT history looks irregular, get it reviewed before you file.
• Change of intent that started too early. Officers may look at when you began the EB-3 process relative to when you applied for or renewed your F-1 visa. If you renewed an F-1 stamp abroad while already lined up with an EB-3 sponsor, expect questions.
• SEVIS gaps and reinstatements. Any prior SEVIS termination, reinstatement, or "out of status" period should be disclosed and explained, not buried.

Positive equities that help F-1 adjusters specifically:

• Continuous valid F-1 status with no SEVIS issues
• Completion of the degree program you came here for
• Authorized employment only (clean CPT/OPT history, with EAD dates that line up)
• Tax filings every year you were in the U.S.
• Community ties — university involvement, volunteer work, faith community, sports leagues
• Family ties in the U.S., especially U.S. citizen or LPR spouse, children, or parents

What to do now

If you are preparing an I-485 filing, treat the discretionary piece as part of the case, not an afterthought. A strong filing now should affirmatively show positive equities, not just eligibility.

Things worth documenting:

• Continuous lawful status and a clean immigration history
• Authorized employment only (with EAD or proper CPT/OPT covering every work period)
• Family ties, especially U.S. citizen or LPR spouses and children
• Long-term community ties (church, volunteer, school, sports)
• Tax compliance and good standing
• Hardship to family members if the application is denied
• Evidence of good moral character (letters, awards, service)

If your history includes overstays, unauthorized work, SEVIS terminations, parole entries, or prior inconsistent statements, please do not file blind. Talk to a licensed immigration attorney first. The right approach is very fact specific, and a thoughtful filing can address negative factors head on instead of leaving them for the officer to discover.

What this does not change

• The statute. INA § 245 still controls who is eligible to adjust.
• Your I-140 approval. It is still valid and you do not lose your place in line.
• Your EB-3 priority date. It is preserved and continues to control when you can file.
• F-1 students can still adjust status. Change of intent has always been a fact-specific question — this memo just makes it more important to handle it cleanly.
• Consular processing. It remains the alternative path for anyone who cannot or should not adjust inside the United States.

Note: H-1B and L-1 are dual-intent visas, so filing I-485 from those statuses is not inconsistent with maintaining status — but H-1B/L-1 workers are not Immilink's typical EB-3 audience, so we have not detailed that path here.

What to watch

Expect USCIS to lean more on requests for evidence (RFEs) tied to discretion, not just eligibility. Expect closer review of nonimmigrant history, travel patterns, SEVIS records, and any gaps in status. The bar to get a clean approval will likely be higher than it was a year ago, even on otherwise strong cases.

Bottom line

USCIS is not closing the door on adjustment of status. It is reminding officers that the door is one they choose to open. For EB-3 unskilled applicants — and especially for F-1 students adjusting status — that means the quality of the filing matters more than ever. Show the eligibility, then show why approving your case is in the best interest of the United States.

If you are in our EB-3 program and have questions about how this affects your case, message your case manager. If you have a complicated history — F-1 status issues, prior unauthorized work, SEVIS terminations, or anything that does not fit on one page — we will route you to a licensed immigration attorney before anything is filed.