Adjustment of Status "Extraordinary Relief" Memo Explained

Attorney Richard Wilner breaks down the May 21st USCIS memorandum (PM 602-0199) that's caused confusion and panic in the immigration community regarding adjustment of status.

Does this memo mean you have to leave the U.S. to get your green card? Is adjustment of status now "extraordinary relief" instead of a normal process? Richard clears up the misinformation and explains what the law actually says.

In this episode, we cover:
- What adjustment of status is and how it works
- The truth behind the "extraordinary relief" language in the memo
- Why adjustment of status has always been discretionary — not new
- How immigration officers use discretion (and its limits)
- What to expect in interviews post-memo
- Unlawful employment forgiveness for immediate relatives
- Why preparation matters more than ever

Adjustment of status remains a valid path to a green card. The law hasn't changed — but agency practices have shifted, and preparation is key.

For a consultation on your immigration case, visit https://www.wilneroreilly.com

#AdjustmentOfStatus #ImmigrationLaw #GreenCard #USCIS #ImmigrationAttorney

DISCLAIMER: This podcast is for informational purposes only and does not constitute legal advice. Every immigration case is unique — consult a licensed immigration attorney about your specific situation.

Transcript

SPEAKER_00 0:00

Welcome back to Immigrate, the official podcast of Wilner and O'Reilly. My name is Richard Wilner. I'm board certified as a specialist in immigration law by the State Bar of California, and I'm one of the founding shareholders of Wilner and O'Reilly. In today's episode, we're going to talk about adjustment of status. More specifically, we're going to talk about the May 21st memo that was released by the Trump administration. If you're familiar with the adjustment of status process or going through the adjustment of status process or contemplating going through the adjustment of status process, you've likely heard of this memo. This memo turned the immigration world upside down once again and caused panic, most of which is unnecessary, but nonetheless caused panic both amongst the immigration law community, or immigration lawyers rather, as well as the immigrant community itself. What is adjustment of status? Adjustment of status is a process where one who is legally in the United States can apply for permanent residency, also known as a green card. Naturally, one needs a basis to become a permanent resident of the United States. For today's purposes, we'll largely be focusing on marriage-based permanent residency applications. In order to pursue a green card or permanent residency through marriage, one must demonstrate that they lawfully entered the United States. That means with a visa, any type of visa, whether it's a visitor's visa, student visa, working visa, or otherwise. You have to demonstrate lawful entry unless you meet a specific exception to the rule. Those exceptions involve military families, old petitions being filed. We've talked about that in other episodes, and I'm not going to focus on that today. Instead, we're going to talk about the adjustment of status process as a whole and how it's been impacted by the memo. What memo am I talking about? The memo that I'm talking about is PM 602-0199, and it will be available in the show notes of this podcast. This memorandum in a nutshell says that adjustment of status is extraordinary relief and suggests to people that even if you're eligible to adjust status, that you need to go back to your home country to adjust status. Simply put, that's not true. Adjustment of status has always been a discretionary process. In the law itself, the Immigration and Nationality Act, which has been around longer than any of us have likely been alive, stands for the proposition that the Attorney General of the United States has bestowed discretion on immigration officers to make decisions on applications. It's that simple. It's always been discretionary, it's never been extraordinary. And for decades, if people are lawfully in the United States and have a basis to adjust their status, they can do it here. Since the memo has been released, there's been conflicting information from the administration, spokespeople saying it's extraordinary, it's not extraordinary, there's been conflicting information. So I'm hopeful and optimistic, and then today's episode I can clear that up for you. It's not extraordinary and it remains discretionary. Discretion is not unfettered. It's not if an officer doesn't like the color of your jacket or the way your hair is done. Instead, discretion is based on matters contained within the law itself: the Immigration and Nationality Act, the Code of Federal Regulations, and case law, which interprets both of those. Think of it like this. Discretion typically refers to different things that you would have done in the past, whether good or bad, and then a balancing of those equities. We, unlike other law firms, spend a ton of time preparing people for adjustment of status interviews. This new memo really hasn't changed anything we do, or rather how we do it. We will always prepare you for an interview, so the ideal result of that interview is the benefit sought, and it ideally will be anticlimatic. What do I mean by that? What I mean is that our preparation for the interview will be more intense than the interview itself. We go to interviews all the time. We've been to interviews pre-memo, we've attended multiple interviews post-memo, and while some of the officers ask additional questions after the memorandum was issued, others don't. Those that do will typically focus on why you overstay, why you decided to apply for adjustment of status instead of returning to your home country. They will explore the past, any violations of the law, such as working unlawfully. I'll have you know that in the law itself, it specifically says that if you are an immediate relative, which is either the parent of a U.S. citizen, the minor child of a U.S. citizen, or the spouse of a U.S. citizen, unlawful employment is forgiven. Am I encouraging you to work unlawfully? Absolutely not. I'm just telling you that if you do, it's not a ground to deny your case. It's always been there. It's nothing new. Likewise, I can't stress enough that adjustment of status has always been discretionary. It doesn't mean that it's an entitlement. You still have to prove that you're eligible for the benefits sought. And that eligibility is typically based on the relationship which underlies your application for adjustment of status, and that you're a good person. The memo doesn't change eligibility rules. It doesn't eliminate adjustment of status as a path to a green card, nor does it require you to go back to your home country. The memo was phrased as a restatement of existing law, which it is. And the administration, in my opinion, was deliberate, smartly in doing that because it allows them to bypass certain types of lawsuits under the Administrative Procedures Act, which will likely be filed to challenge this memorandum. The memorandum is not without consequence, however, and as I mentioned, it's enforced in different jurisdictions differently. Some jurisdictions will issue requests for evidence after your interview. Others have issued requests for evidence for pending cases, and at the end of the day, all it really does is impact preparation, some of the questions that have been asked, as well as the time it takes to render a final decision on your case. Look, this is brand new. It's less than a month old, and changes will come, but the secret, if there is one, is preparation. Hard work, preparing for your interview. It's a big day, and you should take it seriously. And the best way to take it seriously is to be prepared. The law hasn't moved on this subject matter. The agency did, the immigration agency did a little bit. And that gap between the law and the agency, that's really the story. Shouldn't be cause for panic. It should be cause for preparation. I hope you found today's episode informative. For further information about the adjustment of status process or other U.S. immigration matters, please contact us at wilnerorilly.com and we'd be happy to schedule a consultation.