Navigating USCIS's New Discretionary Requests for Evidence in Adjustment of Status Cases

USCIS has significantly changed how it approaches Adjustment of Status applications.

On May 21, 2026, USCIS issued Policy Memorandum PM-602-0199, directing officers to treat Adjustment of Status under INA §245 as a discretionary benefit and a matter of administrative grace. The memo emphasizes that obtaining a green card through Form I-485 is not an entitlement, even when an applicant meets the underlying legal requirements.

The practical result is increased scrutiny of pending and newly filed Adjustment of Status cases and a growing number of Requests for Evidence (RFE) focused on discretionary factors rather than basic eligibility.

What Has Changed?

Importantly, the memo does not change the immigration laws passed by Congress. Applicants who qualify for Adjustment of Status remain eligible to file Form I-485. USCIS has not created new statutory requirements for family-based or employment-based green cards.

What has changed is how officers are instructed to exercise discretion.

Rather than focusing primarily on eligibility, officers are now directed to evaluate the totality of the circumstances and spend more time on determining whether a favorable exercise of discretion is warranted. The memo also characterizes consular processing abroad as the ordinary path to permanent residence and describes Adjustment of Status as an extraordinary form of relief that allows applicants to complete the process inside the United States.

What Is a Discretionary RFE?

A discretionary RFE is a request for evidence intended to help USCIS evaluate the positive and negative factors in a case.

In many situations, the officer is not questioning whether the applicant qualifies for the green card category itself. Instead, the officer is asking why the applicant should receive permanent residence through Adjustment of Status rather than being required to pursue consular processing abroad.

These RFEs often request evidence regarding family ties, employment history, community involvement, financial obligations, education, tax compliance, and other factors that may support a favorable exercise of discretion.

Factors USCIS May Consider

Although no official checklist exists, USCIS has indicated that officers should weigh both positive and negative factors when adjudicating Adjustment of Status applications.

Positive factors may include:

• Absence of criminal history

• Long-term residence in the United States

• Strong family ties to U.S. citizens or permanent residents

• Stable employment history

• Consistent tax compliance

• Property ownership or business investments

• Educational achievements and professional credentials

• Community service and volunteer activities

• Overall good moral character

• Humanitarian considerations

Negative factors may include:

• Unauthorized employment

• Visa overstays

• Status violations

• Prior immigration violations

• Misrepresentation or fraud concerns

• Failure to comply with prior immigration requirements

• Arrests or charges, even if the charges are dismissed or do not result in a conviction

No single factor is necessarily determinative. Officers are instructed to evaluate the overall record.

How to Respond to a Discretionary RFE

Applicants should not treat these RFEs as routine document requests.

First, address any negative factors directly. Ignoring known issues can damage credibility. A clear explanation supported by evidence is generally more effective than attempting to avoid the issue.

Second, provide substantial documentary evidence. Tax transcripts, employment records, educational records, property documents, business records, medical records, and family documentation can all help strengthen the case.

Third, include well-prepared affidavits from family members, employers, religious leaders, community leaders, or other individuals who can speak to the applicant's character, contributions, and responsibilities.

Finally, organize the response carefully. Officers reviewing discretionary factors are evaluating the overall picture. A thorough and professionally prepared submission can make a significant difference.

Do Not Miss the Deadline

A discretionary RFE should be treated as a critical stage of the case. Failure to respond fully and on time can result in the denial of the Adjustment of Status application.

More importantly, these RFEs are not simply requests for additional documents. USCIS is asking applicants to make a legal and factual case for why discretion should be exercised in their favor. The way negative factors are addressed, the evidence presented, and the overall narrative of the response can significantly affect the outcome.

For that reason, applicants should strongly consider consulting an experienced immigration attorney before responding. A well-prepared strategy can help identify strengths in the case, address potential concerns proactively, and ensure the response is tailored to the issues raised by USCIS.

If you have received a discretionary RFE or are concerned about how the new USCIS policy may affect your Adjustment of Status application, Tran Flores Law can help evaluate your case and develop a comprehensive response strategy. Contact Tran Flores Law at (512) 894-9984 to schedule a consultation.