New USCIS Memo on Adjustment of Status and Discretion
This message is to explain what the new USCIS policy memo on adjustment of status (AOS) and “discretion” may mean for you, and what we are doing about it.
I. USCIS cannot secretly change the law under the APA
USCIS is allowed to use “discretion” when it decides adjustment of status cases. But it is not allowed to quietly create a new, stricter rule that is different from the law and from long‑standing practice.
A court must cancel agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The Supreme Court has said that an agency must look at the important facts and give a clear, reasoned explanation for its choices. A long‑time practice that is still irrational does not get a free pass from the APA. Judulang v. Holder, 565 U.S. 42, 61 (2011). Courts will cancel rules that go beyond a statute. Rest. L. Ctr. v. U.S. Dep’t of Lab., 91 F.4th 155, 164–65 (5th Cir. 2024) (vacating rule under 5 U.S.C. § 706(2)).
These cases mean that if USCIS now tries to:
- Raise the bar for AOS approvals,
- Treat AOS as “extraordinary” relief only for a few people, or
- Add extra, unwritten requirements,
without proper rulemaking and without a good, reasoned explanation, that is likely illegal under the APA.
II. What the law says about discretion in adjustment cases
The immigration law has always said that adjustment of status is a matter of discretion. But discretion still must follow rules and must be fair.The Board of Immigration Appeals (BIA) and the Attorney General have explained this for many years:
In Matter of Blas, the Attorney General said that even if a person meets the basic requirements for adjustment, the grant “is a matter of discretion and of administrative grace.” Matter of Blas, 15 I. & N. Dec. 626, 629 (B.I.A. 1974; A.G. 1976). But the BIA must still use guidelines so that decisions are principled and can be reviewed. Id. at 629–30.
In Matter of Arai, the BIA explained that when there are no negative facts, adjustment “will ordinarily be granted,” still as a matter of discretion. Matter of Arai, 13 I. & N. Dec. 494, 496 (B.I.A. 1970). When there are bad facts, the person may have to show “unusual or even outstanding equities” to make up for them. Id.
In Matter of Lam, the BIA said that unauthorized work can be a negative factor, but if the person has a labor certification and the work does not hurt U.S. workers, this negative can be outweighed by positives. Matter of Lam, 16 I. & N. Dec. 432, 433–34 (B.I.A. 1978).
Other BIA cases, like Matter of Marin, say that the judge must balance the bad and good facts, and must look at the “best interests of this country.” Matter of Marin, 16 I. & N. Dec. 581, 584–85 (B.I.A. 1978). The BIA repeated this same balancing idea later in cases like Matter of C-V-T-, 22 I. & N. Dec. 7, 10–11 (B.I.A. 1998).
This is the long‑standing rule: look at all the good and bad facts and make a fair choice. USCIS cannot just throw this away and quietly replace it with a much harsher rule.
III. Positive factors USCIS must consider in normal adjustment cases
The BIA and USCIS have listed many kinds of positive factors that should help a person get adjustment of status.
The main positive factors include:
Family ties in the United States. This covers a U.S. citizen or lawful permanent resident spouse, children, or parents. See, e.g., Matter of C-V-T-, 22 I. & N. Dec. at 11.
Length of residence in the United States. The longer the person has lived here, especially from a young age, the more weight this gets. Matter of Marin, 16 I. & N. Dec. at 584–85.
Record of good moral character. This includes no crimes, paying taxes, community service, and positive references. Id.
Hardship to the applicant and family. If denial would cause strong hardship to the applicant or qualifying relatives, that is a major positive factor. Id. at 584.
Work and community ties. Long, stable employment, education, property ownership, and community involvement are favorable. Matter of C-V-T-, 22 I. & N. Dec. at 11.
Under Matter of Arai, if a person has the basic legal requirements and no real negatives, adjustment “will ordinarily be granted.” 13 I. & N. Dec. at 496. This is the real baseline in the case law. USCIS cannot just pretend that adjustment is now almost always denied.
IV. Negative factors and how they must be balanced
Of course, some cases have negative factors. The BIA has said for a long time that immigration judges and officers must weigh those against the positives.
Matter of Marin explains that the decision‑maker must “balance the adverse factors evidencing the alien’s undesirability as a permanent resident with the social and humane considerations presented in his behalf.” 16 I. & N. Dec. at 584. Matter of C-V-T- applies the same kind of balancing test. 22 I. & N. Dec. at 10–11.
Typical negative factors include:
- Serious or recent crimes;
- Repeated immigration violations, like fraud or multiple unlawful entries;
- Unauthorized work and status violations; or
- Prior removal or deportation orders.
But even here, the BIA has said that a person can still win if the positive factors are strong enough.
In Matter of Lam, unauthorized work was a negative, but the BIA noted that this could be offset by labor certification and strong equities. 16 I. & N. Dec. at 433–34.
In Matter of Arreguin de Rodriguez, the BIA said that arrests with no conviction and weak proof should be given little or no weight. 21 I. & N. Dec. 38, 42 (B.I.A. 1995).
In Matter of Mendez-Moralez, the BIA said that even with serious crimes, a person may get relief if there is real rehabilitation and strong family and hardship factors. 21 I. & N. Dec. 296, 301–06 (B.I.A. 1996).
These cases all show the same idea: there is no automatic bar based only on a label like “status gap” or “unauthorized work.” USCIS must weigh all facts in a fair way. If the new memo is used to turn common negatives into almost automatic denials, that conflicts with these BIA decisions and may be unlawful under the APA.
V. Pending cases and retroactive use of new standards
Many of you worry about cases that are already filed and pending. Your cases were prepared under the old, clear understanding of how discretion works.
Courts are very careful when agencies try to change the rules on people after the fact. Agencies must think about people’s “reliance interests” when they change policies. See State Farm, 463 U.S. at 42–43.. In Judulang, the Court criticized the government for a change that was unfair and not tied to the statute. 565 U.S. at 55–56.
When a new rule suddenly makes past, lawful behavior much more harmful or changes the legal effect of past conduct, courts are very skeptical.
Here, USCIS seems to be trying to:
Move the goalposts for what counts as “enough” positive factors, and
Treat common, previously manageable negatives as nearly fatal. We will argue that cases filed before the memo should be judged under the old, long‑standing balancing test from Arai, Marin, C-V-T-, and similar cases
VI. How we will handle your cases now
We are not going to let USCIS quietly raise the bar without a fight. At the same time, we will do everything we can to win your case without going to court if possible.
First, we will strengthen the evidence in every case on the question of discretion. In new and pending cases, we will:
Explain the correct legal standard, with case law, in our cover letters and briefs. We will cite cases like Matter of Arai, Matter of Blas, Matter of Lam, Matter of Marin, Matter of C-V-T-, Matter of Arreguin de Rodriguez, and Matter of Mendez-Moralez.
Lay out all your positive factors in detail: your family ties, length of residence, clean record, work history, taxes, community service, education, property, and hardship if you are denied.
If you have negative factors (like past status gaps or unauthorized work), we will explain what happened, show any rehabilitation or correction, and argue that the positives still outweigh the negatives, relying on the BIA cases above.
Second, we will try to avoid litigation when we can. That means using strong filings and motions to reopen or reconsider and appeals to the Administrative Appeals Office (AAO) or the BIA when appropriate, to fix wrong decisions inside the agency system.
Third, we are preparing, with our litigation partners, to go to federal court if it becomes necessary and is in your best interest. We will consider bringing APA suits if it serves your needs.
VII. Final message to you
This new USCIS memo is very troubling. It is one of the most serious misuses of power we have seen from this administration. It seems aimed at making it much harder for good, deserving people to become permanent residents.
But you are not alone in this. We remain fully committed to you, to your families, to your pursuit of the American dream, and to the rule of law.
Do not despair. The law still requires fairness, reason, and respect for precedent. We will stand with you, step by step, and we will use every lawful tool to defend your rights.
Contact J. Molina Law Firm today to receive personalized legal guidance to protect your American Dream!
