Christine Jurusik was recently featured in Law360 Canada discussing USCIS Policy Memorandum PM-602-0199 and its impact on Canadian companies, professionals, and families pursuing permanent residence in the United States. The article addresses growing concerns surrounding recent changes to USCIS policy and clarifies what the new guidance actually means for foreign nationals seeking adjustment of status (AOS) while living in the United States.
What Is USCIS Policy Memorandum PM-602-0199?
The issuance of USCIS Policy Memorandum PM-602-0199 has generated significant concern among foreign nationals living and working in the United States on temporary visas, particularly Canadian professionals employed in the U.S. The memorandum has also raised questions among Canadian citizens sponsored for permanent residence through marriage or close family relationships with U.S. citizens or lawful permanent residents. Much of the concern centres on whether the memorandum signals a shift away from adjustment of status inside the United States and toward mandatory immigrant visa processing through U.S. consulates abroad.
For decades, adjustment of status under s. 245 of the Immigration and Nationality Act (INA) has allowed eligible foreign nationals to apply for lawful permanent residence while remaining in the United States. PM-602- 0199 has prompted fears that USCIS may seek to restrict or reverse that long-standing framework.
A close review of the memorandum, however, together with subsequent Department of Homeland Security (DHS) guidance, demonstrates that the policy change is narrower than many initially believed. The memorandum does not eliminate adjustment of status, nor does it require most temporary visa holders or family-sponsored applicants to leave the U.S. to complete immigrant visa processing abroad. Rather, it reinforces the principle that adjustment of status is a discretionary immigration benefit rather than an automatic entitlement.
This distinction is particularly important for Canadian companies with U.S. affiliates, Canadian professionals working in TN, H-1B and L-1 classifications, and Canadian family members pursuing permanent residence through sponsorship by U.S. citizens or lawful permanent residents.
What the memorandum actually says
USCIS Policy Memorandum PM-602-0199, titled “Adjustment of Status is a Matter of Discretion and Administrative Grace, and an Extraordinary Relief that Permits Applicants to Dispense with the Ordinary Consular Visa Process,” emphasizes that adjustment of status has always been discretionary under INA s. 245(a), which states that the Secretary of Homeland Security “may” adjust an applicant’s status.
The memorandum relies heavily on long-standing administrative precedent, which characterized adjustment of status as an extraordinary remedy permitting applicants to avoid traditional immigrant visa processing abroad. Importantly, the memorandum does not create new law. Congress has not amended the INA to eliminate adjustment eligibility for employment-based or family-sponsored immigrants. Instead, USCIS is directing officers to place greater emphasis on discretionary review when adjudicating applications.
Under the memorandum, officers are instructed to consider factors including:
- maintenance of lawful immigration status;
- compliance with visa conditions;
- unauthorized employment or status violations;
- prior immigration violations or misrepresentations; and
- whether the applicant’s conduct is consistent with the purpose of admission.
The memorandum therefore signals that USCIS officers are expected to exercise broader discretion rather than treating adjustment approval as routine once statutory eligibility is established. At the same time, the memorandum does not create a presumption of denial, nor does it eliminate any statutory basis for adjustment of status. Employment-based, family-based and other adjustment pathways remain available. Rather, the memorandum directs adjudicators to conduct a more rigorous discretionary analysis. As a result, applicants should be prepared to address questions that are increasingly being raised during green card interviews, including:
- “Why did you choose adjustment of status instead of consular processing?”
- “What extraordinary circumstances led you to apply for adjustment of status rather than pursue consular processing?”
- “What is extraordinary about your case?”
Does the policy require applicants to leave the United States?
The answer is generally no.
Following issuance of the memorandum, DHS clarified that most immigrants will not be required to leave the U.S. and apply for immigrant visas through consular processing abroad. This clarification is critical because many early interpretations suggested that adjustment of status might effectively disappear for temporary visa holders and family-sponsored applicants already residing in the United States.
Adjustment of status remains authorized under INA s. 245, and USCIS continues to adjudicate applications filed by eligible individuals inside the U.S. The memorandum instead appears intended to reinforce USCIS’s discretionary authority to deny applications even where statutory eligibility technically exists.
For most Canadian nationals maintaining lawful status and presenting favorable equities, adjustment of status is expected to remain available, including for Canadian spouses and immediate family members of U.S. citizens.
Implications for Canadian companies and family members
Canadian companies frequently rely on the movement of employees into the United States to support cross-border operations. Executives, managers, engineers, IT professionals and specialized workers often begin in temporary visa status before later pursuing permanent residence sponsorship. At the same time, many Canadian citizens residing in the United States pursue green cards through marriage-based or other family-sponsored petitions while remaining with relatives in the country.
Historically, adjustment of status has been central to both processes because it permits applicants to continue living and, where authorized, working in the U.S. while permanent residence applications remain pending.
PM-602-0199 does not eliminate these pathways, but it increases the importance of immigration compliance and strategic planning. Canadian employers should expect more detailed scrutiny during adjustment adjudications and should ensure that sponsored employees maintain lawful status, avoid gaps in employment authorization, comply strictly with visa conditions and maintain accurate immigration documentation.
Similarly, Canadian citizens pursuing family-sponsored adjustment applications should be prepared for closer examination of prior immigration history, maintenance of status and the circumstances surrounding entry into the U.S. USCIS may place increased emphasis on whether an applicant entered the country with intentions consistent with the stated purpose of admission.
Special concerns for TN visa holders
The memorandum may create additional concerns for Canadian citizens in TN status under the Canada-United States-Mexico Agreement (CUSMA). Unlike H-1B and L-1 classifications, TN status is not formally recognized as a dual-intent category. TN applicants are generally expected to demonstrate temporary intent when seeking admission to the U.S. Nevertheless, many Canadian TN professionals later pursue permanent residence through employment sponsorship or marriage to U.S. citizens while remaining in the U.S.
The memorandum does not prohibit this practice, but it may lead to increased scrutiny where USCIS believes an individual entered the U.S. with undisclosed immigrant intent. This issue may become particularly significant where a TN holder marries a U.S. citizen shortly after entry or begins the green card process soon after admission.
For Canadian TN professionals and family-sponsored applicants alike, timing and immigration strategy may therefore become increasingly important. Employers and applicants should carefully evaluate when to begin the permanent residence process, whether transitioning to H-1B or L-1 status may reduce risk before filing adjustment applications, the impact of international travel during the process, and how to document ongoing compliance with TN requirements.
Canadian nationals already working in H-1B or L-1 status may face fewer concerns because those classifications expressly permit dual intent.
Conclusion
PM-602-0199 represents a significant policy development emphasizing that adjustment of status is a discretionary immigration benefit rather than a guaranteed right. Although the memorandum encourages stricter discretionary review, it does not eliminate adjustment of status for temporary visa holders or family-sponsored applicants already residing in the U.S.
For Canadian companies, Canadian professionals and Canadian family members, the practical effect is not the end of adjustment of status, but rather heightened scrutiny and a greater need for careful immigration planning, compliance and strategic case preparation. Adjustment of status remains available, but USCIS is making clear that applicants must be prepared to demonstrate not only statutory eligibility, but also that they merit a favourable exercise of administrative discretion.
Schedule a Consultation with an Immigration Lawyer
Sources
We Can Help!
If you have questions about U.S. Immigration, we invite you to contact Richards and Jurusik for trusted guidance and assistance. At Richards and Jurusik, we have attorneys licensed in both the U.S. and Canada, giving our clients a significant advantage for U.S. immigration matters. Our team has decades of experience helping individuals work, live, and travel across North America. Please read some of our hundreds of 5-star client reviews! Contact us today to assess your legal situation.
CHRISTINE JURUSIK is a Partner at Richards and Jurusik and Focuses her practice solely on U.S. Immigration law, with a specialized focus on advising families and individuals on the family-based immigration process and on obtaining U.S. Citizenship. She also handles Canadian Rehabilitation and DUI inadmissibility matters for U.S. Citizens seeking to overcome inadmissibility to Canada. (Full Bio)
