Why USCIS Policy Memo PM-602-0199 Is Facing an Imminent Federal Court Challenge

By Wendy R. Barlow, Esq. | Partner at Cohen, Tucker + Ades Specializing in Complex Immigration Matters

Following the recent release of USCIS Policy Memorandum PM-602-0199, panic has rippled through the immigration community. By reframing Adjustment of Status (AOS) as an “extraordinary form of relief” and declaring that applicants should generally be forced into consular processing abroad, the agency has fundamentally upended decades of established business and family immigration workflows.

However, a collective consensus is rapidly forming among immigration advocates, top-tier law firms, and corporate stakeholders: PM-602-0199 is on shaky legal ground and is highly likely to be challenged—and potentially blocked—in federal court.

At Cohen, Tucker + Ades, we are closely tracking the legal theories that form the basis for upcoming litigation. Here is a breakdown of why this controversial memorandum is expected to face immediate federal lawsuits.

1. Violation of the Administrative Procedure Act (APA)

The most potent weapon against PM-602-0199 is the Administrative Procedure Act (APA). Under the APA, federal agencies are restricted from making sweeping policy changes that affect the public without going through a formal “Notice-and-Comment” rule-making process.

• The Loophole USCIS Used: The government styled this document as a “Policy Memorandum”—an internal guidance tool meant to clarify existing law, which technically bypasses the need for public comment.

• The Legal Counter-Argument: Federal courts routinely look past the label an agency puts on a document. If a “guidance memo” creates binding, substantive changes that practically rewrite how laws are enforced, courts treat it as a substantive rule. Because USCIS did not allow the public, immigration attorneys, or major U.S. employers to review and comment on this massive shift, a judge could rule it procedurally unlawful.

2. “Arbitrary and Capricious” Policy Shifts

Under federal law, when an agency reverses a long-standing policy, it must provide a reasoned explanation for the change and explicitly consider the real-world reliance interests of the people affected.

For over 30 years, USCIS has processed Form I-485 applications as a routine, domestic pathway. Hundreds of thousands of high-skilled professionals (such as H-1B and L-1 visa holders) and spouses of U.S. citizens have built lives, purchased homes, and structured their careers around this domestic process.

By suddenly declaring domestic adjustment to be “exceptional relief” without addressing the massive backlogs at overseas consulates—where visa wait times stretch for years—the agency’s logic is highly vulnerable to being struck down as arbitrary, capricious, and an abuse of discretion.

3. Contradicting Congressional Intent

While Section 245(a) of the Immigration and Nationality Act (INA) does grant the government “discretion” when approving green cards, that discretion is not limitless.

When Congress wrote the INA, it specifically created the Adjustment of Status framework so that individuals lawfully present in the United States would not have to disrupt their lives and travel abroad just to receive a permanent visa. By treating the decision to use a legally enacted, domestic pathway as an “adverse factor” in itself, USCIS is essentially attempting to rewrite the statute. Agencies cannot use internal memos to bypass or nullify the clear intent of Congress.

4. Substantive Irreparable Harm to U.S. Employers and Families

To secure a temporary restraining order (TRO) or a preliminary injunction to halt the memo, plaintiffs must prove that the policy causes “irreparable harm.” The catastrophic business and human costs of this memo make that burden easy to meet:

What Happens Next?

We anticipate that a coalition of business immigration advocacy groups, universities, and individual plaintiffs will file lawsuits in federal district courts in the coming weeks. If a federal judge issues a nationwide preliminary injunction, the implementation of PM-602-0199 will be frozen while the lawsuit winds its way through the court system.

What Should Applicants Do Now?

While we anticipate aggressive litigation to push back against this policy, the memorandum remains active until a court rules otherwise. If you have a pending Form I-485 or are preparing a new filing, it is crucial to proactively build “positive equities” into your application file right now to shield your case against heightened discretionary scrutiny.

At Cohen, Tucker + Ades, we are continually monitoring federal court dockets and agency announcements. We will update our community and clients as information becomes available regarding temporary injunctions or legal challenges to this memo.

If you are concerned about your current immigration status or want to audit your file under these new guidelines, please reach out to our office to speak with an experienced attorney.

About the Author

Wendy R. Barlow, Esq.is a Partner at Cohen, Tucker + Ades, P.C. with nearly 20 years of experience in high-stakes immigration litigation. A graduate of the Maurice A. Deane School of Law at Hofstra University, Wendy is admitted to practice in New York and New Jersey as well as before the U.S. Supreme Court and multiple Federal Circuit Courts. Wendy is recognized for her ability to handle cases that many consider insurmountable.

Disclaimer: This blog post contains general information and is for informational purposes only. It is not legal advice and does not create an attorney-client relationship between you and Cohen, Tucker + Ades P.C. Immigration laws and fee schedules are subject to frequent change. The information provided herein may not reflect the most current legal developments. You should not act or refrain from acting based on information contained in this post without seeking professional counsel from an attorney licensed in your jurisdiction. Cohen, Tucker + Ades P.C. expressly disclaims all liability in respect to actions taken or not taken based on any or all of the contents of this post.

Sources:

USCIS, Policy Memorandum, SUBJECT: 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, PM-602-0199  (May 21, 2026).