On February 6, 1970, the Board of Immigration Appeals issued Interim Decision 2027 in Matter of Arai, 13 I&N Dec. 494, an adjustment-of-status appeal involving a Japanese national working as a specialty cook in the United States under an approved labor certification. The Board reversed the Special Inquiry Officer below, granted adjustment to lawful permanent residence, and articulated the doctrinal framework that has governed INA section 245 discretion for fifty-six years. The Arai framework holds that where an applicant meets the statutory and regulatory eligibility requirements for adjustment of status, the favorable exercise of discretion is generally warranted unless adverse factors are present, and that when adverse factors are present, the applicant must offset them with favorable equities that may need to be unusual or outstanding depending on the gravity of the adverse factors. Matter of Arai overruled the 1965 decision in Matter of Ortiz-Prieto, 11 I&N Dec. 317 (BIA 1965), which had framed section 245 adjustment as extraordinary relief reserved for sympathetic cases. The Arai framing has been the operating doctrine of Form I-485 adjudication at the Immigration and Naturalization Service, at U.S. Citizenship and Immigration Services after the 2003 reorganisation, and across multiple presidential administrations that have written and rewritten the USCIS Policy Manual section on discretion in adjustment of status.

On May 21, 2026, USCIS issued 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.” The memorandum cites Matter of Arai as authority while invoking the “extraordinary relief” framing that Matter of Arai overruled. The doctrinal tension is the subject of this article. The PM-602-0199 memo explainer that opens this series covers the policy memorandum’s structure and operational implications across visa categories. This article narrows to the Arai framework itself: what the Board actually decided in 1970, what the progeny decisions in Blas, Lam, and Cavazos added between 1974 and 1980, how the framework was codified in the USCIS Policy Manual Volume 7 Part A Chapter 10 across the 2005 to 2015 manual-development period, how the November 2020 first Trump administration discretion expansion and the February 2021 Biden administration reversal positioned the framework for the 2026 reframing, and how the post-Loper Bright administrative-law landscape will shape federal court review of PM-602-0199’s invocation of Arai. The reader who finishes this piece will understand what Arai means, what it does not mean, what PM-602-0199 can and cannot do to it as a matter of interpretive memorandum, and what doctrinal arguments are available to practitioners litigating I-485 cases through the second half of 2026.

The audience for this article is the practitioner, the law student, the scholar, and the informed applicant who wants the doctrinal depth that the daily news cycle and the named-firm bulletin commentary have not produced. The Chodorow Law Offices late May 2026 critique, titled “USCIS Gaslights Public with New Policy That Adjustment of Status Is ‘Extraordinary Relief,’” is the most pointed practitioner engagement on the Arai-PM-602-0199 tension. Cyrus D. Mehta at the Cyrus D. Mehta blog has written that the memorandum is best understood as a “rebranding without a rule change,” with the binding Arai precedent remaining the doctrinal foundation that practitioners must continue to invoke. Greg Siskind at Visalaw has emphasised the memorandum’s instruction to officers to weigh consular processing availability as a discretionary factor, which has no foundation in Arai or its progeny. Shoba Sivaprasad Wadhia at Penn State Law has framed the question through her broader scholarship on prosecutorial discretion expansion. Stephen Yale-Loehr at Cornell Law has framed it through the post-Loper-Bright deference lens. Ira J. Kurzban in the most recent edition of “Kurzban’s Immigration Law Sourcebook” has framed it through the statutory-authority lens. The named-scholarly and named-practitioner engagement on Arai’s status under PM-602-0199 is the doctrinal terrain this article traverses.

At a Glance

Field	Value
Decision	Matter of Arai
Citation	13 I&N Dec. 494 (BIA 1970)
Interim Decision number	2027
Decision date	February 6, 1970
Adjudicating body	Board of Immigration Appeals
Statutory provision	INA section 245(a), 8 U.S.C. section 1255(a)
Decision overruled	Matter of Ortiz-Prieto, 11 I&N Dec. 317 (BIA 1965)
Subject matter	Discretionary standard for section 245 adjustment of status
Holding	Favorable exercise of discretion generally warranted absent adverse factors; where adverse factors present, applicant may need to show unusual or outstanding equities
Progeny decisions	Matter of Blas (1974, AG 1976), Matter of Lam (1978), Matter of Cavazos (1980), Matter of Marin (1978), Matter of Patel (1980)
Current Policy Manual codification	USCIS Policy Manual Volume 7 Part A Chapter 10
Status after PM-602-0199	Binding BIA precedent; interpretive memorandum cannot override
Series cross-references	PM-602-0199 memo explainer, AOS versus consular processing, H-1B holders and I-485, litigation and outlook

The article’s organisation follows the doctrinal arc that the rest of the series will reference. The historical and policy context section traces the section 245 discretion provision from the 1952 McCarran-Walter Immigration and Nationality Act through the 1965 Ortiz-Prieto framing, the 1970 Arai overruling, the 1974 to 1980 progeny clarifications, the 2005 to 2015 USCIS Policy Manual codification, the November 2020 first Trump administration discretion expansion, the February 2021 Biden administration reversal, and the May 21, 2026 PM-602-0199 issuance. The doctrinal analysis section reads the Arai opinion against its progeny, identifies the specific doctrinal moves the Board made in 1970, and engages the post-Loper-Bright question of how federal courts will treat an interpretive memorandum that reinterprets the binding BIA precedent the memorandum claims to apply. The application-to-categories section walks through how the Arai framework operates for dual-intent visa holders (H-1B, L-1), for single-intent nonimmigrants (F-1, J-1, B, TN, E-2), for family-based immediate relatives and preference beneficiaries, for backlogged employment-based cohorts, and for the humanitarian categories that the memorandum does not formally address. The complications and counterpoints section engages the Chodorow critique, the Wadhia academic framework, the Yale-Loehr post-Loper-Bright analysis, and the strongest defences of the memorandum’s invocation of Arai. The practical implications section translates the doctrinal analysis into litigation and adjudication strategy. The litigation outlook section previews the anticipated APA challenges and the substantive Arai-grounded arguments practitioners are expected to advance. The FAQ section captures the long-tail search queries and Reddit-discussion variants that the named-firm bulletin commentary has not addressed.

Historical and Policy Context: Section 245 Discretion from 1952 to 2026

The discretion clause that Matter of Arai construes has been in the Immigration and Nationality Act since the original statute was enacted in 1952. The McCarran-Walter Immigration and Nationality Act of 1952, sponsored by Senator Pat McCarran of Nevada and Representative Francis Walter of Pennsylvania, codified the basic architecture of U.S. immigration law that remains operative today. Section 245 was a procedural innovation. Before 1952, a foreign national in the United States who wished to obtain an immigrant visa had to depart the country, apply at a U.S. consular post abroad, and return only if the visa was issued. Section 245 created an in-country alternative for narrow categories of bona fide nonimmigrants, with the Attorney General given authority to adjust status “in his discretion and under such regulations as he may prescribe.” The phrase that has carried seventy-four years of doctrinal weight is “in his discretion.” The phrase that PM-602-0199 invokes is the same phrase that has been in section 245(a) since 1952. The question Matter of Arai answered in 1970, and the question PM-602-0199 has reopened in 2026, is how that discretion shall be exercised.

The Immigration and Naturalization Service implemented section 245 for the first time in 1958, six years after enactment, with regulations that treated the adjustment pathway as a narrow alternative reserved for sympathetic cases. Early administrative practice was substantially restrictive, with the agency exercising the discretion grant in ways that approved adjustment only where the equities were unmistakably favorable. The 1965 Hart-Celler Immigration and Nationality Act Amendments, signed by President Lyndon Johnson at Liberty Island on October 3, 1965, restructured the entire immigrant visa system around family-based and employment-based preference categories that replaced the national-origins quota system in force since the 1924 Johnson-Reed Act. Hart-Celler expanded the population eligible for an immigrant visa and therefore the population for whom adjustment was theoretically available, without amending the section 245(a) discretion clause itself. The expansion created administrative pressure on the agency to develop a more coherent framework for exercising the discretion that Congress had granted.

The first significant Board of Immigration Appeals construction of the section 245 discretion clause came in 1965 with Matter of Ortiz-Prieto, 11 I&N Dec. 317, Interim Decision 1503. The Board, drawing on the early administrative practice that treated adjustment as a narrow procedural shortcut, framed section 245 as “extraordinary relief” granted only in meritorious cases where the equities were unmistakably favorable. The Ortiz-Prieto framing positioned discretion as a high bar that the applicant had to clear, with the burden on the applicant to demonstrate affirmative reasons why adjustment should be granted rather than the burden on the agency to identify adverse factors that would warrant denial. The Ortiz-Prieto framing controlled section 245 adjudication for five years.

On February 6, 1970, the Board issued Matter of Arai. The respondent was a Japanese national who had entered the United States as a bona fide nonimmigrant visitor and had subsequently obtained a labor certification from the Department of Labor for employment as a specialty cook in Japanese cuisine. The respondent began working in that capacity while pursuing adjustment of status. The Special Inquiry Officer below denied adjustment, citing Ortiz-Prieto’s extraordinary-relief framing and treating the respondent’s employment commencement before adjustment was granted as inconsistent with the bona fide nonimmigrant intent at admission. The Board reversed. The Arai opinion rejected the Ortiz-Prieto framing on the central question of how discretion should be exercised. The Board held that where an applicant meets the statutory and regulatory eligibility requirements for adjustment, the favorable exercise of discretion is generally warranted unless adverse factors are present. Where adverse factors are present, the applicant may need to offset them with favorable equities, with the equities needing to be unusual or outstanding in cases where the adverse factors are substantial. Favorable factors including family ties to the United States, length of residence, hardship to the applicant or to family members if adjustment is denied, employment history, community involvement, and good moral character ordinarily warrant favorable discretion absent significant adverse factors. The Arai framework was thus a totality-of-the-circumstances analysis, not a categorical-bar analysis, with the burden of demonstrating adverse factors generally falling on the agency rather than the burden of demonstrating exceptional equities falling categorically on the applicant.

The Arai framework was clarified and refined across the 1970s and 1980s through a series of progeny decisions. Matter of Blas, 15 I&N Dec. 626 (BIA 1974, AG 1976), is the second-most-important decision in the Arai chain. The 1974 Board decision and the 1976 Attorney General override together established the preconceived-intent-and-deception doctrine as an adverse factor under the Arai framework. The Blas decision held that an applicant who entered the United States in a nonimmigrant status with the preconceived intent to remain permanently could be denied adjustment as a matter of discretion even where statutory eligibility was met, because the preconceived intent and any associated misrepresentation at admission constituted adverse factors that the applicant must offset with countervailing equities. The Attorney General’s 1976 override of the Board’s initial 1974 disposition emphasised the gravity of the preconceived-intent adverse factor, signalling that the Arai framework’s tolerance for offsetting equities was not unbounded.

Matter of Lam, 16 I&N Dec. 432 (BIA 1978), refined the discretionary-factor weighing under Arai. The Lam decision catalogued the favorable and adverse factors more systematically than Arai had done, and articulated the operational framework that the Immigration and Naturalization Service would apply across the 1980s and 1990s. The Lam catalogue of favorable factors closely tracks what the USCIS Policy Manual articulates today: family ties to the United States, particularly to U.S. citizen or lawful permanent resident spouses, children, parents, or siblings; length of residence in the United States and the applicant’s establishment of community ties during that residence; evidence of hardship to the applicant or to family members if adjustment is denied and the applicant must depart; history of stable employment and tax compliance; property or business ties; evidence of good moral character through community involvement, volunteer service, or military service; and the absence of any pattern suggesting the applicant’s presence is contrary to public interest. The Lam catalogue of adverse factors similarly tracks contemporary articulation: the nature and underlying circumstances of any ground of inadmissibility; the presence of additional significant immigration violations beyond the inadmissibility ground; criminal history with attention to severity, recency, and pattern; evidence of fraud or misrepresentation in any prior immigration filing; periods of unauthorised employment or status violation that section 245(c) bars or section 245(k) exceptions do not cure; and any other indicators of poor moral character or undesirability.

Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980), refined the preconceived-intent doctrine specifically in the marriage-based adjustment context. The Cavazos decision articulated what practitioners have since called the 30-60-90 day rule of preconceived intent. Conduct inconsistent with the represented nonimmigrant purpose within thirty days of admission creates the strongest presumption of preconceived intent and misrepresentation. Conduct inconsistent with the represented purpose between thirty and sixty days of admission creates a meaningful presumption that the applicant may rebut with evidence. Conduct inconsistent with the represented purpose between sixty and ninety days of admission creates a weaker presumption. Conduct inconsistent with the represented purpose more than ninety days after admission does not create a presumption, though the agency may still consider the timeline as relevant evidence of intent at admission. The Cavazos 30-60-90 day rule is the operational framework that USCIS officers still apply in adjudicating preconceived-intent allegations at the discretionary stage of I-485 adjudication.

Matter of Marin, 16 I&N Dec. 581 (BIA 1978), and Matter of Patel, 17 I&N Dec. 597 (BIA 1980), parallel the Arai framework in the section 212(c) discretion context that governed waiver applications by deportable lawful permanent residents from the 1950s until section 212(c) was repealed by the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. The Marin and Patel decisions catalogued favorable and adverse factors in the section 212(c) waiver context using a similar totality-of-the-circumstances framework, and the parallel doctrine reinforces that the Board’s approach to discretion in immigration adjudication is consistently a weighing exercise rather than a categorical bar. Although section 212(c) is no longer operative for post-1996 deportation grounds, the Marin and Patel parallel remains relevant for understanding the Board’s broader approach to discretion in immigration adjudication.

The U.S. Supreme Court has addressed agency discretion in immigration adjudication in several cases that frame the Arai chain. INS v. Bagamasbad, 429 U.S. 24 (1976), treated agency discretion as a quasi-judicial function that does not require explicit articulation of every favorable or adverse factor. Heckler v. Chaney, 470 U.S. 821 (1985), articulated the foundational principle that agency discretion in enforcement decisions is presumptively unreviewable, though Heckler addressed enforcement non-action rather than adjudication of benefit applications. INS v. Yueh-Shaio Yang, 519 U.S. 26 (1996), held that the Attorney General has discretion under the immigration statutes to grant or deny relief based on factors not enumerated in the statute, and that the discretionary judgment is entitled to substantial deference from reviewing courts. The Heckler and Yang cases situate the Arai framework within the broader framework of agency discretion in immigration adjudication, with the Board’s articulation of how that discretion should be exercised representing the operating doctrine that the Supreme Court precedents do not displace.

The Homeland Security Act of 2002 abolished the Immigration and Naturalization Service and transferred its functions to three new agencies within the Department of Homeland Security: U.S. Citizenship and Immigration Services, Immigration and Customs Enforcement, and Customs and Border Protection. USCIS inherited the adjustment-of-status adjudication function and the responsibility for developing operational guidance that would translate the Arai framework into officer-level practice. Across the 2005 to 2015 period, USCIS developed the USCIS Policy Manual as the operational guide that would replace the older Adjudicator’s Field Manual. The USCIS Policy Manual Volume 7 (Adjustments of Status) Part A Chapter 10, titled “Legal Analysis and Use of Discretion,” codified the Arai favorable-factors framework as the operating doctrine for I-485 adjudication. The Volume 7 Part A Chapter 10 articulation closely tracks the Arai catalogue and the Lam refinement, with favorable factors and adverse factors enumerated and officers instructed to weigh them in a totality-of-the-circumstances analysis.

The November 2020 USCIS Policy Manual updates, issued in the final months of the first Trump administration under Acting USCIS Director Ken Cuccinelli, rewrote significant portions of the Policy Manual to expand discretionary authority across multiple benefit categories. The Immigrant Legal Resource Center documented the November 2020 updates in a March 2021 publication titled “USCIS Policy Manual Makes Sweeping Changes to Discretion,” tracing the specific Policy Manual sections that were rewritten and the operational implications for adjudication. The November 2020 updates touched USCIS Policy Manual Volume 1 Part E Chapter 8 on the non-exhaustive overview of discretionary benefits, Volume 7 Part A Chapter 10 on legal analysis and use of discretion, and parallel chapters across other Policy Manual volumes governing waiver applications, deferred action, and other discretionary benefits. The AILA Litigation Section filed APA challenges to the November 2020 updates, with the substantive theory that the updates departed from binding BIA precedent including Arai and its progeny without notice-and-comment rulemaking.

The February 2021 Biden administration USCIS Policy Manual reversal, issued under Acting USCIS Director Tracy Renaud within weeks of the January 20, 2021 inauguration, withdrew the November 2020 updates and restored the prior Policy Manual articulation as it had stood through the 2005 to 2015 codification period. The AILA-led litigation became moot before substantive merits adjudication, and the November 2020 to February 2021 episode entered the doctrinal record as the most recent precedent for how a contested discretion expansion can be resolved through administrative action rather than judicial intervention. The episode is doctrinally important for two reasons. First, it demonstrates that the Arai framework’s codification in the USCIS Policy Manual is sufficiently load-bearing that an administration’s effort to depart from it generates substantial litigation pressure that subsequent administrations may choose to relieve through reversal. Second, it demonstrates that interpretive guidance is reversible by administrative action, with the operational effect of the contested guidance bounded by the political and administrative cycle that produced it.

On June 28, 2024, the U.S. Supreme Court decided Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, overruling the forty-year Chevron deference doctrine. Loper Bright did not change the section 245 discretion clause, the Arai framework, or the USCIS Policy Manual articulation. What it changed is the standard of federal court review of agency interpretations of statutes. Pre-Loper-Bright, a federal court reviewing a USCIS interpretation of section 245(a) would apply Chevron’s two-step framework: first ask whether the statute is unambiguous on the precise question at issue, and if not, defer to the agency’s reasonable interpretation. Post-Loper-Bright, the federal court applies its own best reading of the statute, with agency interpretations relevant as persuasive authority under the Skidmore framework but never as controlling deference. The Loper Bright shift is doctrinally significant for the Arai-PM-602-0199 question because it weakens the deference posture that an interpretive memorandum like PM-602-0199 would have enjoyed pre-2024, and it correspondingly strengthens the federal court’s role in determining whether the memorandum’s reading of Arai is the best reading of the precedent.

The May 21, 2026 USCIS issuance of PM-602-0199 reopened the Arai question that the November 2020 to February 2021 episode had appeared to settle. The memorandum cites Matter of Arai as authority while invoking the “extraordinary relief” framing that Arai overruled. The May 22, 2026 press conference at which USCIS Spokesman Zach Kahler stated that foreign nationals temporarily in the United States who seek a green card will generally be expected to return to their home countries to apply made the rhetorical pivot operational in the press cycle. The doctrinal status of Matter of Arai under PM-602-0199 is what this article’s remaining sections engage. The threshold answer is that Matter of Arai remains binding BIA precedent that USCIS officers, the immigration courts, and federal courts apply, and that an interpretive memorandum cannot override binding precedent. The operational answer is more complicated, because USCIS officers adjudicate to the most recent Policy Manual and the most recent interpretive memorandum, and a memorandum that recasts the Arai framework’s rhetorical posture will affect officer-level adjudication regardless of the formal status of Arai as binding precedent.

Doctrinal Analysis: What Matter of Arai Actually Holds, and How PM-602-0199 Engages It

The doctrinal analysis of Matter of Arai begins with the text of the 1970 opinion read against the text of Matter of Ortiz-Prieto and the texts of the progeny decisions. Interim Decision 2027, issued by the Board on February 6, 1970, is a comparatively short opinion by contemporary BIA standards, but the doctrinal moves are precise. The Board first articulates the statutory framework: section 245(a) authorises adjustment of status “in his discretion” upon a finding that the applicant is eligible to receive an immigrant visa, is admissible, and is a beneficiary of an immediately available immigrant visa. The Board then describes the prior framing in Ortiz-Prieto: that section 245 adjustment was extraordinary relief reserved for meritorious cases, with the applicant bearing the burden of demonstrating affirmative reasons why adjustment should be granted. The Board then rejects that framing. Section 245(a), in the Board’s reading, does not create an extraordinary-relief category that applicants must clear an elevated burden to qualify for. Section 245(a) creates an administrative pathway that statutorily eligible applicants may pursue, with the discretion grant operating as a totality-of-the-circumstances analysis at the back end of adjudication.

The operative passages of Matter of Arai are paraphrased here rather than reproduced verbatim, consistent with this series’ copyright protocol. The Board’s articulation of the favorable-factors framework holds, in substance, that where adverse factors are present in a given application, the applicant may need to offset those by showing unusual or even outstanding equities. Favorable factors such as family ties, hardship if adjustment is denied, length of residence, employment, community involvement, and good moral character ordinarily warrant favorable exercise of discretion absent adverse factors. The discretion exercise is a weighing exercise, not a categorical-bar exercise. The applicant bears the burden of establishing statutory eligibility, but the agency bears a corresponding burden of identifying adverse factors that would warrant denial despite eligibility. Where adverse factors are identified, the applicant may offer favorable factors that outweigh them, with the magnitude of the favorable showing scaled to the gravity of the adverse showing.

The Arai framework’s doctrinal innovation is the introduction of the “unusual or outstanding equities” formulation as a calibration tool. The phrase has caused fifty-six years of practitioner confusion because it can be read in two ways. Read one is that “unusual or outstanding equities” describes the showing the applicant must make when adverse factors are present, with the threshold scaling to the gravity of the adverse factors. Read two is that “unusual or outstanding equities” describes a categorical requirement applicants must meet whenever adverse factors are present, regardless of the gravity of those factors. The Arai opinion supports read one in its overall structure and in the totality-of-the-circumstances framing. Practitioners have argued in subsequent adjudications that read two is sometimes adopted by individual officers, with the result that minor adverse factors are treated as requiring unusual or outstanding equity showings that no applicant could realistically produce. The USCIS Policy Manual Volume 7 Part A Chapter 10 articulation has consistently followed read one, with the Manual treating “unusual or outstanding equities” as a calibration tool that scales the favorable-factor showing to the gravity of the adverse factors.

Matter of Blas adds the preconceived-intent-and-deception doctrine as an adverse factor under the Arai framework. The Blas analysis treats preconceived intent at nonimmigrant admission as more serious than ordinary status-violation adverse factors, because preconceived intent implicates misrepresentation at the moment of admission. An applicant who entered the United States on a nonimmigrant visa with the preconceived intent to remain permanently has, under the Blas analysis, misrepresented the bona fide nonimmigrant intent that the visa category required. The misrepresentation, if it occurred, is an adverse factor that the applicant must offset with substantial favorable equities. The Attorney General’s 1976 override of the Board’s initial 1974 disposition in Blas emphasised the gravity of the preconceived-intent adverse factor and signalled that the Arai framework’s tolerance for offsetting equities is not unbounded when the adverse factor is misrepresentation at admission.

Matter of Cavazos refined the preconceived-intent doctrine specifically for the marriage-based adjustment context. The Cavazos decision is the source of the 30-60-90 day rule that USCIS officers still apply. The rule is operationally critical for F-1 students adjusting through marriage, for B-2 visitors who marry U.S. citizens during the authorised period of stay, and for any single-intent nonimmigrant whose post-admission conduct could support a preconceived-intent allegation. The 30-60-90 day rule is articulated in current USCIS Policy Manual chapters and has been the operational framework for preconceived-intent adjudication for forty-six years. PM-602-0199 does not by its terms change the 30-60-90 day rule, but the heightened discretionary scrutiny that the memorandum invites is likely to sharpen the operational application of the rule at the field-office level.

Matter of Lam’s catalogue of favorable and adverse factors deserves separate doctrinal analysis because the catalogue continues to drive USCIS Policy Manual articulation. The favorable factors that Lam articulates are not exclusive; they are exemplary, with the totality-of-the-circumstances framework permitting officers to consider any factors that bear on the applicant’s overall situation. Family ties to the United States are weighted heavily in the Lam catalogue, with attention to the immigration status of the family members (U.S. citizens and lawful permanent residents are weighted more heavily than nonimmigrant family members or undocumented family members), the closeness of the family relationship (spouses, minor children, and parents are weighted more heavily than adult siblings or distant relatives), and the duration of the family relationship in the United States. Length of residence in the United States is weighted favorably, with longer residence generally weighted more favorably than shorter residence, though the residence must be lawful for substantial weight to attach. Hardship to the applicant or to family members if adjustment is denied and the applicant must depart is weighted favorably, with attention to financial hardship, medical hardship, educational hardship for U.S. citizen children, and psychological hardship of family separation. Employment history is weighted favorably, with attention to the duration of employment, the nature of the work, and tax compliance. Community involvement is weighted favorably, with attention to volunteer activity, religious community participation, and civic engagement. Good moral character is weighted favorably, with attention to the absence of criminal history, the absence of immigration violations, and the presence of affirmative indications of good character. Military service, where present, is weighted as substantially favorable, with veterans accorded particular consideration.

The adverse factors in the Lam catalogue are similarly exemplary. The nature and underlying circumstances of any ground of inadmissibility is the threshold adverse factor, with attention to whether the inadmissibility was waived, what the underlying conduct was, and how recent the conduct was. Additional significant violations of immigration law beyond the inadmissibility ground are weighted adversely, with attention to status violations, unauthorised employment, prior fraud or misrepresentation, and prior denials or revocations. Criminal history is weighted adversely, with attention to the severity of the offences, the recency of the offences, the pattern of offences (isolated incidents versus repeated conduct), evidence of rehabilitation, and the relationship between the criminal conduct and the immigration record. Preconceived intent under the Blas and Cavazos framework is weighted adversely, with attention to the timeline of conduct after admission. Evidence of fraud or misrepresentation in any prior immigration filing is weighted heavily adversely, given the importance of accuracy and candour in immigration adjudication. Periods of unauthorised employment or status violation are weighted adversely, with the magnitude depending on the duration and the circumstances. Other indicators of poor moral character or undesirability are weighted adversely, with the category functioning as a residual that captures factors the enumerated list does not specifically cover.

PM-602-0199’s engagement with the Arai framework operates at three levels. At the doctrinal level, the memorandum cites Matter of Arai as authority. At the rhetorical level, the memorandum invokes the “extraordinary relief” framing that Arai overruled. At the operational level, the memorandum instructs officers to weigh the availability of consular processing as a factor in the discretionary determination, which is not a factor that Arai or its progeny articulated. The three levels create a doctrinal incoherence that the Chodorow Law Offices critique has emphasised. The doctrinal level (citing Arai) cannot be reconciled with the rhetorical level (invoking Ortiz-Prieto-framing) without claiming that Arai stands for a proposition Arai rejected. The operational level (weighing consular processing availability) introduces a factor that neither the statute, the regulations, the Policy Manual, nor the BIA precedent has authorised officers to weigh. The named-practitioner consensus is that the memorandum’s three-level engagement with Arai is not defensible as a faithful application of binding precedent, and that federal courts reviewing APA challenges to denials issued under the memorandum will need to grapple with the incoherence.

The post-Loper-Bright deference question for the Arai-PM-602-0199 tension is the most consequential doctrinal issue for federal court litigation. Pre-Loper-Bright, an interpretive memorandum that reinterpreted a statutory term would have enjoyed Skidmore deference at minimum, with the federal court weighing the agency’s interpretation as persuasive authority under factors including the thoroughness of the agency’s reasoning, the consistency with prior agency interpretations, and the agency’s expertise in the subject matter. Post-Loper-Bright, the federal court applies its own best reading of the statute, with agency interpretations weighed under Skidmore as persuasive authority but never as controlling. The Skidmore analysis for PM-602-0199’s reading of Arai turns on the consistency factor. An agency interpretation that departs from a sixty-year-old binding BIA precedent that has been consistently articulated in USCIS Policy Manual chapters across multiple administrations does not score well on the consistency factor. The thoroughness factor likewise weighs against the memorandum, because the memorandum is interpretive guidance that does not address the doctrinal tension with Arai or explain why the Ortiz-Prieto framing that Arai overruled should be revived. Stephen Yale-Loehr’s treatise commentary on the post-Loper-Bright landscape, articulated in the most recent edition of the Gordon, Mailman, Yale-Loehr, and Wada treatise “Immigration Law and Procedure,” suggests that the deference calculus weighs substantially against the memorandum.

The November 2020 to February 2021 episode is doctrinally relevant beyond its political-cycle reversibility. The episode demonstrates that an interpretive memorandum that expands discretionary authority in ways that depart from binding BIA precedent generates substantive APA litigation. The litigation in the 2020 to 2021 cycle did not reach merits adjudication because the incoming administration reversed the contested guidance before the courts ruled. The AILA-led litigation’s substantive theories included the procedural APA argument that the November 2020 updates were legislative in effect and required notice-and-comment rulemaking, the substantive APA argument that the updates were arbitrary and capricious under State Farm review because they departed from binding BIA precedent without explanation, and the Loper-Bright-style statutory-interpretation argument (in the pre-Loper-Bright deference framework that was operative at the time) that the updates exceeded the agency’s interpretive authority. The same substantive theories are available for anticipated APA challenges to PM-602-0199, with the post-Loper-Bright landscape strengthening the third theory substantially. The detailed litigation tracker is in the PM-602-0199 litigation, travel, AC21, and outlook analysis.

The doctrinal analysis closes with a synthesis point. Matter of Arai is binding BIA precedent under 8 CFR section 1003.1(g) until and unless the Board overrules itself en banc, the Attorney General overrides the precedent through certification, or a federal court of appeals invalidates the precedent on the merits in a published opinion. None of those things has happened. PM-602-0199, as an interpretive memorandum, cannot override Matter of Arai. USCIS officers must apply Matter of Arai. Immigration judges in removal proceedings must apply Matter of Arai. The Board itself must apply Matter of Arai. The 2026 question is not whether Matter of Arai is good law (it is) but how an interpretive memorandum that purports to reinterpret Arai’s holding will be received by federal courts reviewing APA challenges and how officer-level adjudication will translate the memorandum’s rhetorical posture into adjudication outcomes. The doctrinal architecture has not changed. The operational architecture has, and the practitioner work of preserving and litigating Arai’s framework under PM-602-0199 is the work that the second half of 2026 will demand.

Application of the Arai Framework Across Visa Categories and Adjustment Contexts

The Arai framework operates differently across visa categories because the favorable and adverse factors that the totality-of-the-circumstances analysis weighs vary by the underlying nonimmigrant classification and by the basis of the immigrant petition. This section applies the Arai framework to the major adjustment contexts, with attention to how PM-602-0199’s operational posture affects the weighing in each context. The category-specific deep dives later in the series treat each population in greater detail.

Dual-Intent Nonimmigrants: H-1B, L-1, and the Statutory Preclusion of Preconceived-Intent Adverse Factors

H-1B specialty occupation workers and L-1A and L-1B intracompany transferees occupy the strongest position under the Arai framework because INA section 214(h), 8 U.S.C. section 1184(h), and the implementing regulations at 8 CFR 214.2(h)(16) and 8 CFR 214.2(l)(16) codify dual intent for these classifications. Dual intent means that an H-1B or L-1 nonimmigrant may simultaneously intend to depart at the end of authorised stay (the nonimmigrant intent that the visa category formally requires) and to pursue lawful permanent residence (the immigrant intent that the I-140 and I-485 process represents). The statutory codification of dual intent forecloses the preconceived-intent adverse factor analysis that Matter of Blas and Matter of Cavazos established for single-intent nonimmigrants. An H-1B holder who entered the United States with the intent to pursue lawful permanent residence has not, under section 214(h), misrepresented anything at admission. The preconceived intent that would be an adverse factor under Blas-Cavazos for a single-intent nonimmigrant is, for an H-1B holder, the statutorily authorised contemplation of dual purpose.

PM-602-0199’s operational effect on the dual-intent population is consequently modest at the doctrinal level. The most plausible adverse factor under the Arai framework (preconceived intent) is statutorily foreclosed by section 214(h). The remaining adverse factors that could plausibly be weighed against an H-1B or L-1 holder under Arai (status maintenance gaps, prior denials or RFEs, criminal history, other immigration violations) are fact-specific and do not turn on the dual-intent question. For H-1B and L-1 holders whose status maintenance is solid, whose I-140 is approved, and whose criminal and immigration record is clean, the Arai framework strongly favors approval, and PM-602-0199’s heightened scrutiny is unlikely to produce categorical denials. For H-1B and L-1 holders with status-maintenance complications, the Arai framework requires weighing the gaps against the favorable factors, and PM-602-0199’s operational posture may sharpen the weighing. The H-1B-specific application is treated in the H-1B holders and I-485 after PM-602-0199 analysis, which addresses preconceived-intent foreclosure under section 214(h), the 60-day grace period under 8 CFR 214.1(l)(2), the 240-day rule at 8 CFR 274a.12(b)(20), and the AC21 portability framework.

Single-Intent Nonimmigrants: F-1, J-1, B-1/B-2, TN, and E-2

F-1 students, J-1 exchange visitors, B-1 and B-2 business and tourist visitors, TN treaty professionals, and E-2 treaty investors are single-intent classifications. The applicant for each of these classifications must demonstrate nonimmigrant intent at the time of visa issuance and at each subsequent admission. The Cavazos 30-60-90 day rule of preconceived intent is the operational framework that USCIS officers apply in adjudicating allegations that the single-intent nonimmigrant entered with preconceived intent to remain permanently. PM-602-0199’s heightened discretionary scrutiny is operationally significant for this population, because the discretionary stage is exactly where preconceived-intent allegations come into play under the Blas, Cavazos, and Arai chain.

The F-1 student who transitions to I-485 adjustment faces the Cavazos analysis at the discretionary stage. The F-1 student who entered the United States with no intent to remain permanently and met a U.S. citizen partner after admission is in a strong Arai posture, with the timeline of the relationship development supporting the absence of preconceived intent. The F-1 student who entered already engaged or married to the U.S. citizen partner is in a contested Cavazos posture, with the timeline of the admission and the relationship raising the preconceived-intent question that the applicant must rebut. The F-1 student who transitioned to H-1B status before filing I-485 attenuates the Cavazos analysis substantially, because the years of intervening status break the direct linkage between F-1 admission and I-485 filing that the Cavazos rule was designed to capture. The detailed F-1 application is in the F-1, OPT, and STEM OPT I-485 after PM-602-0199 analysis.

The B-2 tourist visitor who marries a U.S. citizen after admission faces the most direct Cavazos analysis. A B-2 admission for thirty days followed by marriage and I-485 filing within the authorised period of stay triggers the 30-60-90 day presumption directly. The applicant must rebut the presumption with evidence that the marriage and adjustment intent developed after admission, not before. PM-602-0199’s heightened scrutiny is likely to sharpen the documentation expectations for B-2-to-marriage-based-I-485 cases, with USCIS officers requesting more detailed evidence of the timeline and circumstances of the relationship development.

The J-1 exchange visitor faces an additional layer beyond the Cavazos analysis. INA section 212(e) imposes a two-year foreign residence requirement on J-1 program participants in certain categories (J-1 physicians, J-1 government-funded participants, J-1 participants in skill-list areas of their home countries’ interest). The two-year foreign residence requirement categorically bars adjustment for two years after J-1 program completion absent a waiver. The waiver categories under section 212(e)(iii) include no-objection waivers from the home country, persecution-based waivers, hardship-based waivers, and interested-government-agency waivers. The J-1 to I-485 transition requires either completion of the two-year foreign residence requirement or a granted section 212(e) waiver. PM-602-0199 does not change the section 212(e) framework, but the discretionary scrutiny at the I-485 stage for J-1 holders who have obtained section 212(e) waivers is operationally heightened.

The TN treaty professional and the E-2 treaty investor face the same Cavazos preconceived-intent framework as F-1 and B-2 nonimmigrants, with category-specific considerations. The TN treaty professional under the USMCA (formerly NAFTA) framework must demonstrate nonimmigrant intent at admission, and a TN admission followed by I-140 and I-485 filing raises the preconceived-intent question that the applicant must address. The E-2 treaty investor has invested substantial capital in a U.S. enterprise and may face a particular pattern of adverse-factor allegation if the investor’s conduct after admission is inconsistent with the represented nonimmigrant purpose. The category-specific application for TN, E-2, B-1, B-2, and J-1 holders is in the TN, E-2, B-1, B-2, and J-1 I-485 after PM-602-0199 analysis, which addresses the preconceived-intent analysis under PM-602-0199’s heightened scrutiny.

Family-Based Adjustment: Immediate Relatives and Preference Categories

Family-based adjustment under the Arai framework requires weighing favorable factors that are typically dominated by the family relationship itself against adverse factors that may include preconceived intent (where the timeline supports the inference), prior immigration violations, fraud or misrepresentation, criminal history, and other adverse equities. The Arai framework’s favorable-factors catalogue substantially favors family-based applicants whose family ties are documented, whose relationships are bona fide, and whose other equities (length of residence, employment, community involvement, good moral character) are substantial. Immediate relatives of U.S. citizens (spouses, unmarried minor children, parents of adult U.S. citizen petitioners) are not subject to numerical limits and may file I-485 concurrently with or after the I-130. Preference-category beneficiaries (F1, F2A, F2B, F3, F4) face numerical limits and per-country caps and must wait for priority date currency.

The marriage-based subset of immediate-relative adjustment is the largest single I-485 category at USCIS and the most operationally affected by PM-602-0199’s heightened scrutiny. The Arai analysis for marriage-based adjustment turns substantially on the bona fides of the marriage, with USCIS officers probing the relationship documentation at the I-130 stage and at the I-485 interview. The favorable-factors framework strongly supports approval where the marriage is bona fide, where the family relationship has produced substantial U.S. equities (joint property, joint financial accounts, joint residence, U.S. citizen children or stepchildren), and where the applicant’s other equities are positive. The adverse-factors framework can produce denial where the marriage is judged not bona fide, where the timeline of the marriage and the immigration filing supports a Cavazos preconceived-intent inference, where the applicant has prior immigration violations or prior denials, or where the applicant has substantial criminal history.

The preference-category adjustment context is operationally distinct because the priority date wait often spans many years, during which the applicant builds substantial U.S. equities under any reasonable Arai analysis. F2A spouses and minor children of lawful permanent residents who have waited five to seven years for priority date currency, F4 brothers and sisters of U.S. citizens who have waited two decades from petition filing, and F3 married sons and daughters of U.S. citizens with similarly long waits all present favorable-factor profiles that the Arai framework substantially supports. The adverse-factors framework for these populations focuses on the status maintenance during the long wait, the bona fides of the qualifying family relationship, and any adverse equities that accumulated during the wait. The detailed family-based application is in the family-based I-485 after PM-602-0199 analysis.

Backlogged Employment-Based Cohorts: India, China, and the Long-Wait Equities

The Indian and Chinese employment-based backlog cohorts present a particular application of the Arai framework. Applicants in these cohorts have, by the time of I-485 adjudication, typically spent ten to twenty years in the United States in H-1B status or in dependent status, have built substantial family and community ties, and have accumulated favorable equities under any reasonable Arai analysis. The dual-intent statutory protection forecloses the preconceived-intent adverse factor for H-1B-based applicants, and the long status histories have typically produced approved I-140 petitions that establish the substantive merits of the underlying immigrant petition. The Arai analysis for the long-wait cohort substantially favors approval, with the favorable-factors catalogue substantially exceeding any plausible adverse-factors catalogue for applicants whose status maintenance has been clean.

The complication for the long-wait cohort is that long status histories produce ambiguities. An H-1B extension filed three days late twelve years ago, an employer change documented imperfectly fifteen years ago, a brief period of unauthorised employment that was cured under section 245(k) but for which the documentation is now hard to reproduce, an old criminal arrest that did not result in conviction but appears in the record. These accumulated ambiguities are the surface that PM-602-0199’s heightened discretionary scrutiny can probe. The Arai framework requires officers to weigh these adverse factors against the favorable factors, and the favorable factors for the long-wait cohort are typically substantial. The detailed backlog cohort application is in the India and China EB backlog cohorts after PM-602-0199 analysis.

Humanitarian Categories: Refugees, Asylees, U Visa, T Visa, VAWA, and SIJS

The humanitarian adjustment categories (section 209 for refugees and asylees, section 245(l) for T-visa holders, section 245(m) for U-visa holders, the VAWA self-petitioner framework, and the Special Immigrant Juvenile Status section 245(h) framework) operate under statutory provisions distinct from section 245(a). PM-602-0199 by its terms addresses section 245(a). The Arai framework, with its favorable-factors and adverse-factors catalogue, applies to discretionary adjudication across these humanitarian categories, but the specific discretionary standards for each category are informed by the humanitarian and policy considerations underlying the relevant statutory provision. Refugees adjusting under section 209 face a discretionary standard that is informed by the protection considerations underlying the refugee programme. U-visa holders adjusting under section 245(m) face a discretionary standard informed by the victim-protection considerations underlying the U-visa programme. T-visa holders adjusting under section 245(l) face a discretionary standard informed by the trafficking-victim-protection considerations. VAWA self-petitioners face a discretionary standard informed by the domestic-violence-victim-protection considerations. SIJS applicants face a discretionary standard informed by the child-welfare considerations underlying the SIJS programme.

The named-advocacy consensus, including statements from the National Immigrant Women’s Advocacy Project, the Tahirih Justice Center, the Young Center for Immigrant Children’s Rights, and the Catholic Legal Immigration Network, is that PM-602-0199 should not apply to the humanitarian categories. The memorandum’s invocation of consular processing as the ordinary pathway is doctrinally inapt for humanitarian applicants whose statutory pathways are specifically designed to address the substantive reasons that ordinary consular processing is not feasible. Whether USCIS will issue implementing guidance clarifying the scope of the memorandum, and whether field-office adjudicators will heed the advocacy consensus absent explicit clarification, are open questions that the second half of 2026 will answer.

EB-5, K-1, and the Section 245(a) Periphery

The EB-5 investor adjustment, the K-1 fiancé adjustment, and other section 245(a) periphery categories operate under the section 245(a) statutory framework that PM-602-0199 directly addresses. The Arai framework applies, with category-specific considerations layered into the analysis. The EB-5 investor’s favorable-factors profile is typically dominated by the substantial capital investment in a U.S. enterprise and the resulting job creation, with the adverse-factors analysis focusing on source-of-funds documentation and any prior immigration history complications. The K-1 fiancé’s favorable-factors profile is dominated by the bona fide marital relationship that the K-1 admission was predicated on, with the adverse-factors analysis focusing on the continuity of the relationship from K-1 admission through the marriage to the I-485 filing. PM-602-0199’s heightened scrutiny applies across both categories, with the documentation expectations sharpened.

The application analysis closes with a synthesis observation. The Arai framework’s totality-of-the-circumstances analysis is the doctrinal foundation that all section 245 discretionary adjudication must apply, and that all humanitarian-category adjudication applies in modified form. The favorable-factors catalogue that Matter of Lam articulated and that the USCIS Policy Manual Volume 7 Part A Chapter 10 codifies remains binding. The adverse-factors catalogue likewise remains binding. PM-602-0199’s operational effect is to sharpen the weighing exercise at the discretionary stage, not to introduce new factors or to displace the Arai framework. Practitioners across all categories should respond to the memorandum’s heightened scrutiny by documenting favorable factors aggressively at filing, anticipating and addressing adverse-factor analysis through proactive documentation, and continuing to litigate I-485 cases under the binding Arai precedent that the memorandum cannot override.

Complications and Counterpoints: The Chodorow Critique, the Wadhia Framework, and the Defences

The doctrinal contest over PM-602-0199’s invocation of Matter of Arai has produced sharp practitioner and scholarly commentary in the month since the memorandum’s issuance. This section engages the strongest critiques and the strongest defences, with the goal of equipping the reader to evaluate the doctrinal arguments rather than to adopt a partisan position. The Chodorow Law Offices critique, the Wadhia academic framework, the Yale-Loehr post-Loper-Bright analysis, the AILA litigation posture, and the defences from the agency-aligned commentary each deserve substantive engagement.

The Chodorow Critique: That PM-602-0199 Misreads Matter of Arai

The Chodorow Law Offices critique, published in late May 2026 under the title “USCIS Gaslights Public with New Policy That Adjustment of Status Is ‘Extraordinary Relief,’” is the most pointed practitioner engagement on the Arai-PM-602-0199 tension. The Chodorow argument has three parts that warrant separate treatment.

The first part of the Chodorow critique is the precedent-reading argument. Matter of Arai overruled Matter of Ortiz-Prieto specifically on the “extraordinary relief” framing. The Board’s 1970 opinion rejected the Ortiz-Prieto categorical-bar approach in favor of the totality-of-the-circumstances weighing approach. PM-602-0199 invokes Arai as authority while reasserting the Ortiz-Prieto framing that Arai rejected. The argument that Arai supports a presumption against adjustment is, on the Chodorow reading, a misreading of the very BIA precedent the memorandum cites. The textual support for the Chodorow position is substantial. The Arai opinion describes the totality-of-the-circumstances framework as the operating doctrine and the Ortiz-Prieto framing as the prior approach that Arai superseded. A memorandum that cites Arai while invoking the superseded framing creates a doctrinal contradiction that the memorandum does not address. The Chodorow critique characterises this contradiction as “gaslighting” because the memorandum represents itself as faithful to Arai while substantively reviving the framing that Arai displaced.

The second part of the Chodorow critique is the statutory-authority argument. Section 245(a) grants the Secretary discretion to adjust the status of eligible applicants. The grant does not authorise the Secretary to convert the discretion into a categorical preference for an alternative pathway. The availability of consular processing is a factual circumstance about the applicant, not a discretionary factor that the statute or the BIA precedent has authorised officers to weigh. PM-602-0199’s instruction to officers to weigh consular processing availability is, on the Chodorow argument, an introduction of a non-discretionary factor into the discretionary analysis. Officers are being told to treat the existence of an alternative pathway as an adverse factor that the applicant must overcome, which is doctrinally distinct from weighing the applicant’s equities under the Arai framework. The Chodorow argument is that the statutory grant of discretion does not extend that far.

The third part of the Chodorow critique is the APA procedural argument. PM-602-0199 is characterised by USCIS as interpretive guidance that does not require notice-and-comment rulemaking under section 553 of the Administrative Procedure Act. The Chodorow argument is that a memorandum that substantively departs from binding BIA precedent and that introduces new discretionary factors is not interpretive but legislative in effect, and that the procedural failure to follow notice-and-comment requirements is a substantive APA defect. The argument tracks the AILA-led litigation theory advanced against the November 2020 USCIS Policy Manual updates, which made similar substantive departures from prior agency interpretation through interpretive guidance rather than rulemaking. The 2020 to 2021 litigation became moot before merits adjudication, leaving the question open for the 2026 litigation that practitioners anticipate.

The Wadhia Academic Framework: Discretion Expansion as De Facto Rule Change

Shoba Sivaprasad Wadhia at Penn State Law has built her academic career on the role of prosecutorial discretion in immigration adjudication. Her books “Beyond Deportation” (NYU Press, 2015) and “Banned” (NYU Press, 2019) and her articles across the leading immigration law journals document how interpretive guidance that expands discretionary authority functions in practice. The Wadhia framework is not directly a doctrinal argument about whether PM-602-0199 is consistent with Matter of Arai. The Wadhia framework is an empirical-prediction argument about the operational effects of discretion-expansion memoranda.

The Wadhia framework predicts that PM-602-0199 will produce measurable increases in I-485 denial rates and Request for Evidence issuance at the discretionary stage. The mechanism is that USCIS officers adjudicate to the most recent Policy Manual and the most recent interpretive memorandum, and a memorandum that recasts the operational posture of discretionary analysis will affect officer behaviour regardless of the formal doctrinal claim that the memorandum restates existing law. The empirical prediction is testable through future USCIS data releases that will become available across the second half of 2026 and into 2027. The Wadhia framework also predicts disparate operational effects across applicant populations, with the heaviest burden falling on applicants whose adverse factors are non-trivial but who would have prevailed under the Arai framework on the balance of equities. The disparate-effects prediction is consistent with the named-practitioner observation that the memorandum’s heightened scrutiny will affect applicants with status-maintenance complications, prior denials, or other adverse-factor profiles more substantially than applicants whose records are clean.

The Yale-Loehr Post-Loper-Bright Analysis

Stephen Yale-Loehr at Cornell Law, the senior co-author of the Gordon, Mailman, Yale-Loehr, and Wada treatise “Immigration Law and Procedure,” frames the PM-602-0199 question through the post-Loper-Bright administrative-law lens. The Yale-Loehr analysis emphasises that the deference calculus has shifted substantially since June 28, 2024. Pre-Loper-Bright, an interpretive memorandum that reinterpreted a statutory term would have enjoyed Skidmore deference at minimum, with the federal court weighing the agency’s interpretation as persuasive authority. Auer deference for agency interpretations of agency regulations would have applied to certain claims. Chevron deference for agency interpretations of ambiguous statutes would have applied if the statute were found ambiguous. Post-Loper-Bright, Chevron is gone, Auer has been narrowed by Kisor v. Wilkie (2019), and Skidmore is the principal remaining deference doctrine for interpretive guidance.

The Yale-Loehr framework reads the PM-602-0199 reading of Arai through the Skidmore factors. The thoroughness factor weighs against the memorandum because the memorandum does not address the doctrinal tension with Arai’s overruling of Ortiz-Prieto or explain why the Ortiz-Prieto framing is being revived. The consistency factor weighs against the memorandum because the agency has consistently articulated the Arai framework in the USCIS Policy Manual across multiple administrations, with only the November 2020 to February 2021 departure (which was reversed within weeks of administration change) interrupting the consistency. The expertise factor is the factor most favorable to the agency, because USCIS has subject-matter expertise in section 245 adjudication. The persuasiveness factor weighs against the memorandum for the same reasons the thoroughness and consistency factors do. On balance, the Skidmore calculus for PM-602-0199 is unfavorable, and federal courts reviewing APA challenges are likely to apply their own best reading of section 245(a) and of Matter of Arai rather than deferring to the memorandum’s reading.

The AILA Litigation Posture

The American Immigration Lawyers Association has indicated through public statements that it will support APA litigation challenging PM-602-0199 and will issue practice advisories to its membership on documentation strategies under the new operational posture. The AILA litigation posture is informed by the November 2020 to February 2021 litigation experience, in which AILA led challenges to the first Trump administration’s Policy Manual updates before the incoming Biden administration reversed the contested guidance. The AILA leadership has emphasised that the binding Arai precedent must be invoked at every stage of I-485 adjudication, that practitioners should document favorable factors aggressively at filing, and that the AILA Litigation Section is prepared to coordinate strategic litigation efforts. The AILA Government Relations team has additionally indicated that it will engage with the agency on implementing guidance and will press for clarification on the memorandum’s scope, particularly with respect to humanitarian categories that the memorandum does not formally address.

The Strongest Defences of the Memorandum’s Invocation of Arai

The strongest defence of PM-602-0199’s invocation of Matter of Arai operates at three levels. At the textual level, the defence reads the memorandum’s “extraordinary relief” language as describing the operational character of in-country adjustment relative to the ordinary consular pathway, not as invoking the Ortiz-Prieto categorical-bar framing. The defence argues that “extraordinary relief” can be read as a description rather than as a doctrinal category, with the memorandum operating within the Arai framework while emphasising the discretionary character that Arai itself recognised. The textual defence is plausible but contested, because the operational effect of telling officers that adjustment is extraordinary relief is to invite Ortiz-Prieto-style adjudication regardless of the formal doctrinal claim.

At the agency-authority level, the defence emphasises that section 245(a) grants the Secretary discretion to interpret the statute consistent with the agency’s policy judgment. The Secretary may, on this view, elect to interpret the discretion grant in ways that emphasise the ordinary consular pathway as the default for nonimmigrants seeking permanent residence. The interpretive memorandum operates within the agency’s interpretive authority, and federal courts should respect the agency’s exercise of that authority. The agency-authority defence is more plausible pre-Loper-Bright than post-Loper-Bright, because the Chevron deference framework that supported the defence has been overruled. Under Loper Bright’s Skidmore framework, the agency-authority defence carries less weight.

At the structural level, the defence emphasises that the memorandum is reversible by future administrations and is subject to federal court review under the APA. The structural posture is that the memorandum operates as one administration’s interpretive judgment, with the political-cycle reversibility and the judicial-review check together bounding the memorandum’s operational effect. The November 2020 to February 2021 episode is cited as evidence that the system functions as designed, with contested discretion expansions producing administrative or judicial responses that restore equilibrium. The structural defence is not a substantive defence of the memorandum’s doctrinal accuracy; it is a defence of the administrative-policy system that produces and reverses contested memoranda. The defence has resonance for practitioners who view the immigration-policy system as designed to produce iterative adjustment rather than stable doctrine, but it does not address the specific question of whether the memorandum’s reading of Arai is the best reading of the precedent.

Named-Practitioner Strategic Commentary

The Cyrus D. Mehta commentary at cyrusmehta.com has framed PM-602-0199 as a “rebranding without a rule change,” with Mehta emphasising that practitioners must continue to invoke the binding Arai framework at every stage of I-485 adjudication. The Greg Siskind commentary at Visalaw has emphasised the memorandum’s introduction of consular processing availability as an adverse factor, which Siskind argues has no foundation in the statute, the regulations, or the BIA precedent. The Murthy Law Firm bulletin has emphasised the documentation strategy under the heightened scrutiny, with attention to favorable-factor presentation at filing and to RFE response strategy. The Wolfsdorf Rosenfeld bulletin has emphasised the corporate-immigration applications of the memorandum, with attention to H-1B and L-1 dual-intent protection. The Ballard Spahr bulletin has emphasised the family-based applications, with attention to bona fide marriage documentation. The Harris Beach Murtha bulletin has emphasised the employment-based backlog cohort applications. The Murray Osorio bulletin has emphasised the humanitarian-category applications and the advocacy consensus that PM-602-0199 should not apply to section 209, section 245(l), section 245(m), VAWA, or SIJS adjudication.

The named-policy-analyst commentary adds an empirical layer. Stuart Anderson at the National Foundation for American Policy has framed the memorandum’s likely operational effects through the H-1B and employment-based-cohort data he tracks for his Forbes column, noting that the discretionary scrutiny will fall most heavily on the population for whom the consular alternative carries the longest backlogs. David Bier at the Cato Institute has analysed the consular processing wait times the memorandum’s framing relies on, observing that the ordinary consular pathway the memorandum invokes is not in fact ordinarily available within reasonable time horizons for the cohorts most affected. Doris Meissner at the Migration Policy Institute, drawing on her experience as former INS Commissioner, has framed the memorandum within the longer arc of administrative discretion-doctrine adjustments and emphasised that the November 2020 to February 2021 episode demonstrates the structural reversibility of contested interpretive guidance.

The named-firm bulletin landscape converges on several practitioner-strategic recommendations. Document favorable factors aggressively at filing rather than reactively after RFE issuance. Anticipate adverse-factor analysis and address it proactively through explanatory documentation. Continue to invoke the binding Arai framework at every stage. Maintain meticulous records during the I-485 pendency. Engage licensed immigration counsel for cases with contested elements. Preserve the documentary record for potential post-adjudication advocacy through motions to reopen, appeals where available, and federal court litigation where the eligibility analysis is reviewable. The Ira J. Kurzban “Kurzban’s Immigration Law Sourcebook” practitioner-standard chapter on section 245 discretion, in its most recent edition, reinforces these recommendations and frames them in the Arai-doctrinal context that this article has analysed.

Practical Implications: Litigation Strategy and Adjudication Strategy Under the Arai Framework

The practical implications of the Arai framework under PM-602-0199 differ by applicant posture and by the stage of the adjudication-and-review pipeline at which the practitioner is operating. The work of preserving the Arai framework’s load-bearing function under the heightened operational scrutiny is the work of careful documentation at filing, careful response to discretionary RFEs, and careful preservation of issues for potential post-adjudication advocacy. This section translates the doctrinal analysis into the practical work product.

Documentation Strategy at Filing

The filing-stage documentation strategy under PM-602-0199 begins with the recognition that the Arai framework’s favorable-factors catalogue is the substantive ground on which the I-485 will be evaluated. The Form I-485 application itself elicits information relevant to discretionary factors in Part 3 (admission and status history) and Part 8 (criminal and immigration history). The supporting documentation that accompanies the I-485 filing is the practitioner’s opportunity to present the favorable-factors case affirmatively rather than reactively. The named-practitioner consensus is that filing-stage documentation should include the following elements regardless of the specific category.

Family ties documentation should include marriage certificates with translations as needed, birth certificates for children, evidence of joint property and joint financial accounts where applicable, and where relevant, affidavits from U.S. citizen or lawful permanent resident family members attesting to the family relationship and the hardship that would result from adjustment denial. Length-of-residence documentation should include the complete I-94 admission record with all entries, evidence of physical presence in the United States across the residence period (lease agreements, utility bills, employment records, tax returns), and where applicable, evidence of community ties developed during the residence (religious community involvement, volunteer activity, professional association membership). Employment documentation should include employment verification letters, tax returns covering the relevant period, evidence of professional licensure or certification where applicable, and where relevant, evidence of employment continuity through any status transitions. Good moral character documentation should include affidavits from community members where the record supports such affidavits, evidence of volunteer activity, evidence of religious community participation, and evidence of any military service. Hardship documentation, where the favorable-factors case requires it, should include evidence of financial hardship that would result from adjustment denial, evidence of medical hardship for the applicant or for family members, evidence of educational hardship for U.S. citizen children, and evidence of psychological hardship of family separation.

The adverse-factors documentation strategy is preemptive. Where the record contains elements that could be characterised as adverse factors (status maintenance complications, prior denials or RFEs, criminal arrests without conviction, immigration violations that were cured under section 245(k) or section 245(i), prior fraud allegations that were not sustained), the filing-stage documentation should address these elements proactively. The proactive approach gives the practitioner control of the narrative and frames the adverse-factor analysis on terms the practitioner has selected. The reactive approach (waiting for an RFE that asks about the adverse factor) cedes control of the narrative to the adjudicator and may invite a more aggressive interpretation of the adverse factor.

Response Strategy for Discretionary RFEs

Requests for Evidence at the discretionary stage of I-485 adjudication are anticipated to increase under PM-602-0199’s heightened operational posture. The Wadhia framework predicts measurable increases in RFE issuance, and the named-practitioner commentary across the May to June 2026 publication window has consistently anticipated heightened RFE activity. The response strategy for discretionary RFEs should be informed by the Arai framework’s totality-of-the-circumstances analysis and by the binding nature of the underlying precedent.

The RFE response should engage the Arai framework explicitly. The response should cite Matter of Arai by name and citation, should articulate the favorable-factors framework that the precedent establishes, and should walk through the favorable factors in the applicant’s record using the Lam catalogue’s categories. The response should address any adverse factors the RFE has identified, with attention to whether the adverse factor is properly characterised, whether the adverse factor is properly weighted under Arai, and whether the applicant has offsetting favorable equities that the totality-of-the-circumstances analysis supports. The response should engage Matter of Cavazos’s 30-60-90 day rule where preconceived intent is at issue, with documentation of the timeline of conduct after admission. The response should engage Matter of Blas where deception at admission is at issue, with attention to whether the alleged deception meets the doctrinal standard.

The RFE response should preserve issues for potential post-adjudication advocacy. If the RFE invokes PM-602-0199’s operational guidance in ways that depart from the Arai framework, the response should note the doctrinal tension and articulate the practitioner’s position that the binding Arai precedent governs the discretionary analysis. If the RFE invokes consular processing availability as an adverse factor, the response should articulate the practitioner’s position that pathway availability is not a discretionary factor that Arai or its progeny has authorised officers to weigh. The preservation of issues for potential federal court litigation under the APA is important because the eligibility analysis is reviewable in federal court even where the discretionary analysis is jurisdictionally complex under 8 U.S.C. section 1252(a)(2)(B)(i).

Post-Adjudication Advocacy: Motions to Reopen, Appeals, and Federal Court Litigation

The post-adjudication advocacy landscape for discretionary I-485 denials under PM-602-0199 includes motions to reopen with USCIS, appeals where available (the Administrative Appeals Office reviews limited categories of I-485 denials; most discretionary denials are not directly appealable to the AAO), and federal court litigation under the APA. The AAO appeal pathway is narrow because most discretionary I-485 denials are not within the AAO’s jurisdiction. The motion to reopen with USCIS is available where new evidence or new legal arguments support reconsideration, and the motion practice should engage the Arai framework explicitly. The federal court APA litigation pathway is the principal post-adjudication advocacy mechanism for discretionary denials.

The jurisdictional framework for federal court review of I-485 denials is complicated. Patel v. Garland, 596 U.S. 328 (2022), addressed the scope of 8 U.S.C. section 1252(a)(2)(B)(i), which channels review of discretionary denials to removal proceedings rather than to direct APA review. The Patel holding has been read by lower courts in varying ways, with some courts treating discretionary denials as non-reviewable and others permitting review of the underlying eligibility analysis and of constitutional claims and questions of law under the section 1252(a)(2)(D) exception. Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020), articulated the questions-of-law exception broadly, permitting review of mixed questions of law and fact under section 1252(a)(2)(D). The detailed federal court review landscape, including the Patel and Guerrero-Lasprilla analysis, is in the PM-602-0199 litigation, travel, AC21, and outlook analysis.

Adjudication Strategy for Pending Applicants

For pending I-485 applicants who filed before May 21, 2026, the adjudication strategy depends on the posture of the case. Applicants whose cases are awaiting initial RFE or interview should consider supplemental filings that affirmatively present the favorable-factors case. Applicants who have received RFEs after May 21, 2026 should respond with the documentation strategy outlined above. Applicants who have received interview notices should prepare for interview questions that probe discretionary factors more extensively than pre-May-21-2026 interviews typically did. The named-practitioner consensus is that interview preparation should include review of the entire status history, rehearsal of favorable-factor presentation, and preparation for questions about preconceived intent, consular processing availability, and other discretionary factors that the memorandum’s operational posture is likely to surface.

Adjudication Strategy for Prospective Applicants

For prospective applicants who are eligible to file I-485 in the second half of 2026, the adjudication strategy starts with the question of whether to file or to wait. The named-practitioner consensus is that delay does not improve the operational posture, and that applicants whose statutory eligibility is solid should file when ready with attention to filing-stage documentation. Applicants with status-maintenance complications should consider whether pre-filing remediation is feasible, with attention to any documentary corrections or supplemental filings that could strengthen the favorable-factors profile before I-485 filing.

The choice between AOS and consular processing is a separate analysis treated in the AOS versus consular processing in 2026 analysis. The Arai-doctrinal practical implications converge on the recommendation that applicants whose adverse-factor profile is minimal should generally proceed with AOS, while applicants with section 212(a)(9)(B) bar exposure on departure or with substantial consular processing risks should likewise generally proceed with AOS despite the heightened discretionary scrutiny that the memorandum invites.

Litigation Outlook and Versioning Note

The federal court APA litigation outlook for PM-602-0199 through the second half of 2026 is anticipated to be active, with the Arai-related doctrinal arguments at the centre of substantive merits adjudication. The anticipated substantive theories that practitioners and litigation organisations are expected to advance include the procedural APA argument that the memorandum is legislative in effect and required notice-and-comment rulemaking under section 553, the substantive APA argument under section 706 that the memorandum is arbitrary and capricious because it departs from binding BIA precedent including Matter of Arai without articulating reasoned justification, and the post-Loper-Bright statutory-interpretation argument that the memorandum’s reading of section 245(a) and of Matter of Arai is not the best reading and is not entitled to Skidmore deference. The State Farm arbitrary-and-capricious standard, articulated in Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983), is the governing standard, and the State Farm analysis under PM-602-0199 will focus on whether the agency examined relevant data and articulated a satisfactory explanation including a rational connection between facts found and the choice made.

The most likely venues for first-wave litigation are the U.S. District Courts for the Northern District of California, the Southern District of New York, the Eastern District of New York, the District of Columbia, and the District of Maryland. The detailed litigation tracker is in the PM-602-0199 litigation, travel, AC21, and outlook analysis. The named-litigation organisations anticipated to participate include AILA, the American Immigration Council, the International Refugee Assistance Project, the National Immigration Law Center, the Asian Americans Advancing Justice consortium, and the South Asian Bar Association of North America. The named-plaintiff posture is anticipated to include pending I-485 applicants whose cases were filed before May 21, 2026, applicants who have received RFEs citing the memorandum’s framing, and applicants who have received denials issued under the memorandum’s operational posture.

The Arai-specific arguments that anticipated litigation is expected to advance focus on three propositions. First, that Matter of Arai is binding BIA precedent that USCIS officers must apply and that an interpretive memorandum cannot override. Second, that PM-602-0199’s invocation of “extraordinary relief” framing is inconsistent with Arai’s overruling of Matter of Ortiz-Prieto on precisely that framing, and that the memorandum’s reading of Arai is therefore not the best reading of the precedent under post-Loper-Bright review. Third, that PM-602-0199’s instruction to officers to weigh consular processing availability as a discretionary factor introduces a factor that the statute, the regulations, the USCIS Policy Manual, and the BIA precedent have not authorised officers to weigh, and that this introduction exceeds the agency’s interpretive authority. The detailed engagement of these arguments in the anticipated litigation will produce, over the second half of 2026, the federal court guidance that practitioners need to navigate the heightened operational scrutiny that the memorandum has produced.

This article will be updated as triggering events occur. Triggering events include USCIS implementing guidance that addresses the Arai-PM-602-0199 tension explicitly, updated Policy Manual chapters in Volume 7 Part A Chapter 10, federal court rulings on APA challenges to the memorandum, Board of Immigration Appeals decisions interpreting the memorandum, Form I-485 edition updates, and any administrative action that rescinds, amends, or supersedes the memorandum. The body-level date stamp in the closing disclaimer and the Changelog block immediately preceding the disclaimer are the canonical signals of the article’s currency. Readers should consult the most recent version of this article and the most recent version of the PM-602-0199 litigation, travel, AC21, and outlook analysis for the current state of the doctrinal and litigation landscape.

Frequently Asked Questions

Q: What is Matter of Arai?

Matter of Arai is a 1970 Board of Immigration Appeals decision, formally cited as 13 I&N Dec. 494 (BIA 1970) and bearing Interim Decision number 2027. The decision established the favorable-factors framework that governs the exercise of discretion in Form I-485 adjustment of status adjudication under INA section 245(a). The respondent was a Japanese national working as a specialty cook in the United States under an approved labor certification. The Board reversed the Special Inquiry Officer’s denial and articulated the totality-of-the-circumstances framework that has been the operating doctrine of section 245 discretionary adjudication for fifty-six years. Matter of Arai overruled the prior decision in Matter of Ortiz-Prieto, 11 I&N Dec. 317 (BIA 1965), which had framed adjustment as extraordinary relief reserved for sympathetic cases.

Q: What is the citation for Matter of Arai?

The full citation is Matter of Arai, 13 I&N Dec. 494 (BIA 1970), Interim Decision 2027. The “I&N Dec.” abbreviation refers to the Immigration and Naturalization Decisions reporter that publishes Board of Immigration Appeals decisions and Attorney General decisions in immigration adjudication. Volume 13 is the reporter volume that contains the 1970 decisions. Page 494 is the first page of the Arai opinion. “BIA 1970” identifies the adjudicating body (Board of Immigration Appeals) and the year of decision. The Interim Decision number 2027 is the sequential identifier the Board assigns to its precedent decisions. The decision is retrievable at the Department of Justice Executive Office for Immigration Review archive.

Q: What did the Board of Immigration Appeals decide in Matter of Arai?

The Board decided that the favorable exercise of discretion in section 245 adjustment is generally warranted where the applicant meets the statutory and regulatory eligibility requirements, unless adverse factors are present. Where adverse factors are present, the applicant may offset them with favorable equities, with the magnitude of the favorable showing scaled to the gravity of the adverse showing. The Board rejected the prior Ortiz-Prieto framing that treated adjustment as extraordinary relief reserved for sympathetic cases. The Arai framework is a totality-of-the-circumstances analysis in which favorable factors (family ties, length of residence, hardship, employment, community involvement, good moral character) are weighed against adverse factors (immigration violations, criminal history, fraud, preconceived intent). The framework remains binding BIA precedent.

Q: What year was Matter of Arai decided?

Matter of Arai was decided on February 6, 1970, by the Board of Immigration Appeals. The decision was issued as Interim Decision 2027 and was subsequently published in the bound Immigration and Naturalization Decisions reporter at volume 13, page 494. The 1970 decision date places Arai in the immediate post-Hart-Celler era of U.S. immigration law, five years after the 1965 Immigration and Nationality Act Amendments restructured the immigrant visa system around family-based and employment-based preference categories. The Arai framework has now been the operating doctrine of section 245 discretionary adjudication for fifty-six years, surviving multiple administrations and the 2003 reorganisation that transferred adjudication from the Immigration and Naturalization Service to U.S. Citizenship and Immigration Services.

Q: What is the favorable-factors framework for I-485 adjudication?

The favorable-factors framework is the totality-of-the-circumstances analysis that Matter of Arai established and that Matter of Lam (1978) and the USCIS Policy Manual Volume 7 Part A Chapter 10 elaborate. The framework requires USCIS officers to identify the favorable factors in the applicant’s record and weigh them against any adverse factors present. Favorable factors include family ties to the United States, length of residence, hardship to the applicant or to family members if adjustment is denied, employment history, community involvement, evidence of good moral character, and any other factors bearing on the applicant’s overall situation. The favorable-factors catalogue is exemplary rather than exclusive, with the analysis permitting consideration of any factors relevant to the totality of the circumstances.

Q: What did Matter of Arai overrule?

Matter of Arai overruled Matter of Ortiz-Prieto, 11 I&N Dec. 317 (BIA 1965), specifically on the “extraordinary relief” framing of section 245 adjustment. The Ortiz-Prieto framing had treated adjustment as a narrow procedural shortcut reserved for sympathetic cases, with the applicant bearing the burden of demonstrating affirmative reasons why adjustment should be granted. Arai rejected this framing in favor of the totality-of-the-circumstances analysis. The Arai opinion did not overrule Ortiz-Prieto’s broader holdings on other section 245 questions; it overruled the specific extraordinary-relief framing on the question of how discretion should be exercised. The doctrinal significance is that Arai is the foundational discretion-framework precedent that subsequent BIA, Attorney General, and federal court decisions have built upon.

Q: What is Matter of Ortiz-Prieto?

Matter of Ortiz-Prieto is a 1965 Board of Immigration Appeals decision, cited as 11 I&N Dec. 317 (BIA 1965), Interim Decision 1503, that framed section 245 adjustment as extraordinary relief reserved for meritorious cases. The Ortiz-Prieto framing positioned discretion as a high bar that the applicant had to clear, with the applicant bearing the burden of demonstrating affirmative reasons why adjustment should be granted rather than the burden falling on the agency to identify adverse factors. The Ortiz-Prieto framing controlled section 245 adjudication for five years until Matter of Arai overruled it in 1970. The 2026 USCIS Policy Memorandum PM-602-0199 has been criticised by the Chodorow Law Offices and others for invoking the Ortiz-Prieto framing while citing Arai as authority.

Q: What is the difference between Matter of Arai and Matter of Ortiz-Prieto?

The doctrinal difference between Matter of Arai and Matter of Ortiz-Prieto is the framing of section 245 discretion. Ortiz-Prieto (1965) framed adjustment as extraordinary relief reserved for meritorious cases, with the applicant bearing the burden of demonstrating exceptional equities to qualify for the favorable exercise of discretion. Arai (1970) framed adjustment as an administrative pathway available to statutorily eligible applicants, with discretion operating as a totality-of-the-circumstances analysis in which favorable factors are weighed against adverse factors. Arai overruled Ortiz-Prieto on this specific framing. The difference is operationally significant: Ortiz-Prieto invites categorical-bar adjudication while Arai requires weighing-exercise adjudication. The 2026 PM-602-0199 reframing has revived the Ortiz-Prieto framing in tension with Arai’s overruling.

Q: What are the favorable discretionary factors USCIS officers consider for I-485 adjudication?

The favorable factors that USCIS officers consider under the Arai framework, as catalogued in Matter of Lam and codified in the USCIS Policy Manual Volume 7 Part A Chapter 10, include family ties to the United States (particularly to U.S. citizen or lawful permanent resident family members); length of residence in the United States and community ties developed during that residence; evidence of hardship to the applicant or to family members if adjustment is denied; history of stable employment and tax compliance; property or business ties in the United States; evidence of good moral character through community involvement, religious participation, or military service; volunteer activity; and any other factors bearing on the applicant’s overall situation. The favorable factors are exemplary rather than exhaustive.

Q: What are the adverse discretionary factors USCIS officers consider for I-485 adjudication?

The adverse factors include the nature and underlying circumstances of any ground of inadmissibility (whether waived or not); additional significant violations of immigration law beyond the inadmissibility ground; criminal history with attention to severity, recency, and pattern of offences; preconceived intent at nonimmigrant admission under the Blas and Cavazos framework; evidence of fraud or misrepresentation in any prior immigration filing; periods of unauthorised employment or status violation that section 245(c) bars or section 245(k) exceptions do not cure; and other indicators of poor moral character or undesirability as a permanent resident. The adverse factors catalogue, like the favorable factors catalogue, is exemplary rather than exhaustive, with officers permitted to weigh any factors that bear adversely on the applicant’s overall situation.

Q: How does USCIS weigh favorable factors against adverse factors?

USCIS officers conduct a totality-of-the-circumstances analysis under the Arai framework, weighing the favorable factors in the applicant’s record against any adverse factors present. The weighing is not mechanical; no single favorable or adverse factor is dispositive. The Arai framework’s “unusual or outstanding equities” formulation calibrates the magnitude of the favorable showing the applicant must make to the gravity of the adverse showing. Where adverse factors are minor or technical, ordinary favorable factors typically suffice. Where adverse factors are substantial (significant criminal history, fraud at admission, repeated immigration violations), the favorable showing must be correspondingly substantial to support a favorable exercise of discretion. The weighing is the substantive work of discretionary adjudication and is reviewable under the Administrative Procedure Act for arbitrariness.

Q: What does “unusual or outstanding equities” mean in immigration law?

The phrase “unusual or outstanding equities” originates in Matter of Arai’s articulation of the favorable-factors framework. It describes the calibration tool that the Arai framework uses to scale the favorable-factor showing to the gravity of the adverse-factor showing. Where adverse factors are present, the applicant may need to show unusual or outstanding equities to overcome them. The phrase has been the subject of fifty-six years of practitioner argument, with some readings treating it as a description of the calibration (ordinary equities suffice for minor adverse factors, exceptional equities are needed for serious adverse factors) and other readings treating it as a categorical threshold (any adverse factor triggers the unusual-or-outstanding requirement). The USCIS Policy Manual articulation supports the calibration reading.

Q: What is the totality-of-the-circumstances test in adjustment of status adjudication?

The totality-of-the-circumstances test is the analytical framework that Matter of Arai established and that the USCIS Policy Manual codifies for section 245 discretionary adjudication. The test requires USCIS officers to consider all relevant factors in the applicant’s record, both favorable and adverse, and to reach a non-mechanical determination based on the overall balance of the equities. No single factor is dispositive in either direction. The test contrasts with categorical-bar approaches that would treat specific factors as automatic disqualifiers regardless of offsetting equities. The totality-of-the-circumstances framework is consistent across BIA discretion doctrine, including the parallel Matter of Marin framework that governed section 212(c) waivers and the broader discretion framework that the Supreme Court recognised in INS v. Yueh-Shaio Yang (1996).

Q: What is preconceived intent?

Preconceived intent in immigration law refers to the intent to remain permanently in the United States at the time of a nonimmigrant visa admission. The doctrine treats preconceived intent at admission as an adverse factor in section 245 discretionary adjudication, because the applicant’s representation of bona fide nonimmigrant intent at admission was inconsistent with the actual intent to remain. Matter of Blas (1974, AG 1976) established preconceived intent as a discretionary adverse factor, and Matter of Cavazos (1980) refined the doctrine with the 30-60-90 day rule that creates timeline-based presumptions. Preconceived intent does not apply to dual-intent classifications (H-1B, L-1) because INA section 214(h) statutorily authorises the dual purpose for those visa categories.

Q: What is Matter of Blas?

Matter of Blas is a Board of Immigration Appeals decision issued in 1974 and reviewed by the Attorney General in 1976, cited as 15 I&N Dec. 626 (BIA 1974, AG 1976). The decision established preconceived intent and deception at nonimmigrant admission as adverse factors in section 245 discretionary adjudication under the Arai framework. The Blas analysis treats preconceived intent as a substantial adverse factor that the applicant must offset with substantial favorable equities, with the Attorney General’s 1976 override of the Board’s initial 1974 disposition emphasising the gravity of misrepresentation at admission. Matter of Blas, together with Matter of Cavazos (1980), provides the doctrinal foundation for the 30-60-90 day rule of preconceived intent that USCIS officers still apply.

Q: What is Matter of Lam?

Matter of Lam is a Board of Immigration Appeals decision issued in 1978, cited as 16 I&N Dec. 432 (BIA 1978). The decision refined the discretionary-factor weighing under the Arai framework, cataloguing the favorable and adverse factors more systematically than Arai had done. The Lam catalogue of favorable factors and adverse factors became the operational framework that the Immigration and Naturalization Service applied across the 1980s and 1990s, and the catalogue continues to drive the USCIS Policy Manual Volume 7 Part A Chapter 10 articulation today. The Lam decision is the second-most-frequently-cited BIA precedent in section 245 discretionary adjudication after Arai itself, and practitioners typically cite both decisions together in RFE responses and litigation filings.

Q: What is Matter of Cavazos?

Matter of Cavazos is a Board of Immigration Appeals decision issued in 1980, cited as 17 I&N Dec. 215 (BIA 1980). The decision refined the preconceived-intent doctrine specifically in the marriage-based adjustment context and articulated the 30-60-90 day rule that USCIS officers still apply. The rule creates timeline-based presumptions: conduct inconsistent with represented nonimmigrant purpose within thirty days of admission creates the strongest presumption of preconceived intent, conduct between thirty and sixty days creates a meaningful presumption, conduct between sixty and ninety days creates a weaker presumption, and conduct more than ninety days after admission does not create a presumption though the timeline remains relevant evidence. The Cavazos rule is operationally critical for F-1 students adjusting through marriage and for B-2 visitors who marry U.S. citizens during authorised stay.

Q: Does PM-602-0199 overrule Matter of Arai?

No. PM-602-0199 is an interpretive policy memorandum issued by USCIS. It does not amend the Immigration and Nationality Act, does not promulgate a regulation under 8 CFR Part 245, and does not adjudicate a precedent decision. Matter of Arai is binding BIA precedent under 8 CFR section 1003.1(g) until and unless the Board overrules itself en banc, the Attorney General overrides the precedent through certification, or a federal court of appeals invalidates the precedent on the merits in a published opinion. None of those things has happened. Matter of Arai therefore remains binding BIA precedent that USCIS officers, immigration judges, and federal courts must apply.

Q: Does PM-602-0199 reinstate Matter of Ortiz-Prieto?

No. PM-602-0199 cannot reinstate Matter of Ortiz-Prieto, because Matter of Ortiz-Prieto was overruled by Matter of Arai in 1970 and an interpretive policy memorandum has no authority to revive overruled BIA precedent. The Chodorow Law Offices critique has argued that PM-602-0199 invokes the Ortiz-Prieto framing while citing Arai as authority, which creates a doctrinal incoherence. The memorandum’s operational instruction to officers to treat adjustment as “extraordinary relief” echoes the Ortiz-Prieto framing rhetorically, but as a matter of binding precedent, Matter of Arai’s overruling of Matter of Ortiz-Prieto remains in effect. Officers are still required to apply the Arai totality-of-the-circumstances analysis.

Q: Is Matter of Arai still good law after PM-602-0199?

Yes. Matter of Arai remains binding BIA precedent. An interpretive policy memorandum like PM-602-0199 cannot overrule binding precedent. The BIA itself can overrule its own precedent through en banc decision; the Attorney General can override BIA precedent through certification; a federal court of appeals can invalidate BIA precedent on the merits in a published opinion. None of these mechanisms has been invoked against Matter of Arai. USCIS officers adjudicating I-485 applications must continue to apply the Arai favorable-factors framework. Practitioners litigating I-485 cases under PM-602-0199’s heightened operational scrutiny should cite Matter of Arai by name and citation at every stage of adjudication and any subsequent review.

Q: Did the November 2020 USCIS Policy Manual changes overrule Matter of Arai?

No. The November 2020 USCIS Policy Manual changes, issued under Acting USCIS Director Ken Cuccinelli in the final months of the first Trump administration, expanded discretionary authority across multiple Policy Manual volumes. The Immigrant Legal Resource Center documented the changes as “sweeping changes to discretion” in a March 2021 publication. The changes were interpretive guidance that did not have authority to overrule binding BIA precedent. AILA-led APA litigation challenged the November 2020 changes, and the litigation became moot when the incoming Biden administration reversed the changes in February 2021. Matter of Arai remained binding BIA precedent throughout the November 2020 to February 2021 episode.

Q: Did the February 2021 Biden administration reversal restore Matter of Arai?

The February 2021 Biden administration USCIS Policy Manual reversal, issued under Acting USCIS Director Tracy Renaud, withdrew the November 2020 changes and restored the prior Policy Manual articulation as it had stood through the 2005 to 2015 codification period. The reversal did not “restore” Matter of Arai in the sense that Matter of Arai had not been overruled; the precedent had remained binding throughout. The reversal did restore the Policy Manual articulation that closely tracked the Arai-Lam favorable-factors framework, which the November 2020 changes had departed from. The episode is the most recent precedent for how a contested discretion-expansion interpretive guidance can be reversed through administrative action without judicial intervention.

Q: How does Loper Bright v Raimondo affect USCIS policy memos that reinterpret BIA precedent?

Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), decided June 28, 2024, overruled the forty-year Chevron deference doctrine. The shift affects federal court review of USCIS interpretive memoranda. Pre-Loper-Bright, a federal court reviewing a USCIS policy memo would apply Chevron’s two-step framework, deferring to the agency’s reasonable interpretation of ambiguous statutes. Post-Loper-Bright, federal courts apply their own best reading of the statute, with agency interpretations relevant as persuasive authority under Skidmore but never as controlling deference. For PM-602-0199’s reinterpretation of Matter of Arai, the shift means that federal courts reviewing APA challenges will apply their own best reading of section 245(a) and of the Arai framework rather than deferring to the memorandum’s reading.

Q: What is the difference between BIA precedent and USCIS policy guidance?

BIA precedent is the binding adjudicatory law produced by the Board of Immigration Appeals in published precedent decisions. Under 8 CFR section 1003.1(g), BIA precedent decisions are binding on all USCIS officers, all immigration judges, and the Board itself unless and until the precedent is overruled by the Board en banc, overridden by the Attorney General through certification, or invalidated by a federal court of appeals in a published opinion on the merits. USCIS policy guidance is interpretive material issued by USCIS that explains how the agency reads existing statute, regulation, and precedent. Policy guidance binds USCIS officers in their adjudicatory practice but does not have the legal force of regulation and cannot overrule binding BIA precedent.

Q: Can a USCIS officer ignore Matter of Arai under PM-602-0199?

No. USCIS officers are bound by Matter of Arai as binding BIA precedent under 8 CFR section 1003.1(g). An officer who ignores the Arai framework in adjudicating an I-485 application has issued a decision that is contrary to binding precedent and that is reviewable under the Administrative Procedure Act for arbitrary-and-capricious decisionmaking under State Farm review. PM-602-0199 cannot authorise officers to ignore binding precedent; the memorandum is interpretive guidance that must be reconciled with the Arai framework. Practitioners who receive denials that appear to ignore the Arai framework should preserve the issue for motion to reopen and potential federal court litigation under the APA.

Q: What standard of review applies to discretionary I-485 denials in federal court?

The standard of review for discretionary I-485 denials in federal court is complicated by the jurisdictional framework of 8 U.S.C. section 1252(a)(2)(B)(i), which channels review of discretionary denials to removal proceedings rather than to direct APA review. Patel v. Garland, 596 U.S. 328 (2022), addressed the scope of this jurisdictional channeling. The section 1252(a)(2)(D) exception preserves federal court jurisdiction over constitutional claims and questions of law, and Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020), articulated the questions-of-law exception broadly. Where federal court review is available, the State Farm arbitrary-and-capricious standard under APA section 706 governs, and the review focuses on whether the agency examined relevant data and articulated a satisfactory explanation including a rational connection between facts and choice.

Q: Can a discretionary I-485 denial be appealed administratively?

The Administrative Appeals Office reviews limited categories of I-485 denials. Most discretionary I-485 denials, particularly in the employment-based and family-based contexts, are not directly appealable to the AAO. The principal administrative-stage remedies for discretionary I-485 denials are motions to reopen and motions to reconsider filed with USCIS, which permit the agency to revisit the decision based on new evidence (motion to reopen) or based on legal arguments the agency did not adequately address (motion to reconsider). The motion practice should engage the Arai framework explicitly and should preserve issues for any subsequent federal court litigation. The detailed administrative appeals analysis is in the litigation, travel, AC21, and outlook tracker.

Q: Can a discretionary I-485 denial be challenged in federal court under the Administrative Procedure Act?

Federal court APA challenges to discretionary I-485 denials face the jurisdictional framework of 8 U.S.C. section 1252(a)(2)(B)(i) as interpreted in Patel v. Garland. The section 1252(a)(2)(D) exception preserves jurisdiction over constitutional claims and questions of law. Practitioners challenging discretionary denials in federal court typically frame the claims to fall within the questions-of-law exception, with attention to whether the agency applied the correct legal standard (the Arai framework), whether the agency considered all relevant factors under the Arai framework, and whether the agency’s interpretation of the statute or the binding precedent was the best interpretation. The post-Loper-Bright deference framework substantially weakens the agency’s defensive posture in federal court litigation.

Q: What is the USCIS Policy Manual Volume 7 Part A Chapter 10?

USCIS Policy Manual Volume 7 (Adjustments of Status) Part A (Eligibility for Adjustment of Status) Chapter 10 is titled “Legal Analysis and Use of Discretion.” The chapter is the principal Policy Manual provision that codifies the Arai favorable-factors framework for I-485 adjudication. The chapter articulates the favorable factors and adverse factors that USCIS officers consider, the totality-of-the-circumstances analysis that the Arai framework requires, and the operational guidance for officers conducting the discretionary determination. The chapter has been the subject of substantial revision across multiple administrations, including the November 2020 first Trump administration discretion expansion that was reversed in February 2021 by the Biden administration and that PM-602-0199 has echoed in 2026.

Q: Does the USCIS Policy Manual currently cite Matter of Arai?

The USCIS Policy Manual Volume 7 Part A Chapter 10 has historically cited Matter of Arai by name and citation as the foundational BIA precedent governing section 245 discretionary adjudication. The November 2020 first Trump administration Policy Manual updates modified the Arai-citation context in ways that the Immigrant Legal Resource Center documented in its March 2021 publication. The February 2021 Biden administration reversal restored the prior Arai-citation context. The May 2026 PM-602-0199 issuance does not change the Policy Manual Volume 7 Part A Chapter 10 directly; the memorandum is a separate interpretive document that interacts with the Policy Manual articulation. Whether USCIS will issue Policy Manual amendments implementing PM-602-0199 is an open question for the second half of 2026.

Q: What is the 30-60-90 day rule of preconceived intent?

The 30-60-90 day rule is a USCIS adjudication framework, traceable to Matter of Cavazos (1980), that creates timeline-based presumptions of preconceived intent at nonimmigrant admission. Conduct inconsistent with the represented nonimmigrant purpose within thirty days of admission creates the strongest presumption of preconceived intent. Conduct between thirty and sixty days creates a meaningful presumption. Conduct between sixty and ninety days creates a weaker presumption. Conduct more than ninety days after admission does not create a presumption, though the timeline remains relevant evidence the agency may consider. The rule is operationally critical for single-intent nonimmigrants (F-1, J-1, B-1, B-2, TN, E-2) pursuing adjustment of status, and the rule’s application is heightened under PM-602-0199’s operational posture.

Q: How do I document favorable factors for my I-485 filing under PM-602-0199?

The filing-stage documentation strategy under PM-602-0199 begins with the recognition that the Arai favorable-factors catalogue is the substantive ground on which the I-485 will be evaluated. Documentation should include family ties evidence (marriage certificates, birth certificates, evidence of joint property and joint financial accounts, affidavits from family members), length-of-residence evidence (complete I-94 record, lease agreements, utility bills, employment records, tax returns), employment documentation (verification letters, tax returns, professional licensure evidence), good moral character evidence (community affidavits, evidence of volunteer activity, evidence of religious community participation, evidence of military service where applicable), and hardship documentation where the case requires it. Preemptive documentation addressing any potentially adverse elements in the record allows the practitioner to control the narrative.

Q: Does Matter of Arai apply to humanitarian-category adjustments like U visa or T visa?

Matter of Arai applies as the foundational discretion-doctrine precedent across section 245 adjudication and across the broader BIA discretion framework. The U-visa adjustment pathway under INA section 245(m) and the T-visa adjustment pathway under INA section 245(l) operate under statutory provisions distinct from section 245(a), with category-specific discretionary standards that are informed by the humanitarian considerations underlying the U-visa and T-visa programmes. The Arai favorable-factors framework applies as the doctrinal foundation, with the U-visa-specific and T-visa-specific considerations layered on top. PM-602-0199 by its terms does not address section 245(l) or section 245(m), and the named-advocacy consensus is that the memorandum’s framing should not apply to U-visa and T-visa adjudication.

Q: How does dual intent under section 214(h) interact with Matter of Arai?

INA section 214(h), 8 U.S.C. section 1184(h), codifies dual intent for H-1B specialty occupation workers and L-1 intracompany transferees. The statutory codification forecloses the preconceived-intent adverse factor analysis that Matter of Blas and Matter of Cavazos established for single-intent nonimmigrants. An H-1B or L-1 holder who entered the United States with the intent to pursue lawful permanent residence has not, under section 214(h), misrepresented anything at admission. The interaction with Matter of Arai is that the most plausible adverse factor under the Arai framework (preconceived intent) is statutorily foreclosed for dual-intent nonimmigrants. The remaining adverse factors that could be weighed under Arai are fact-specific and do not turn on the dual-intent question, so dual-intent H-1B and L-1 holders generally occupy the strongest Arai-framework posture.

Q: Can I cite Matter of Arai in my RFE response?

Yes, and practitioners typically should. An RFE response on discretionary issues should engage the Arai framework explicitly, citing Matter of Arai, 13 I&N Dec. 494 (BIA 1970), by name and citation. The response should articulate the favorable-factors framework that the precedent establishes, walk through the favorable factors in the applicant’s record using the Lam catalogue’s categories, and address any adverse factors the RFE has identified. Where the RFE invokes PM-602-0199’s operational guidance in ways that depart from the Arai framework, the response should note the doctrinal tension and articulate that the binding Arai precedent governs the discretionary analysis. Engaging Matter of Arai explicitly in the RFE response preserves the issue for any subsequent post-adjudication advocacy.

Q: What is the practical effect of PM-602-0199 if Matter of Arai is still binding?

The practical effect of PM-602-0199 is operational rather than doctrinal. The Arai framework remains binding precedent that officers must apply, but the memorandum’s rhetorical framing of adjustment as extraordinary relief and its instruction to officers to weigh consular processing availability are likely to produce heightened RFE issuance at the discretionary stage, increased denial rates for applicants with non-trivial adverse-factor profiles, and slower adjudication overall. The named-practitioner consensus is that applicants should document favorable factors aggressively, anticipate adverse-factor analysis with proactive documentation, and continue to invoke the Arai framework at every stage. The doctrinal architecture has not changed, but the operational architecture has, and practitioner work product must adapt accordingly.

Not Legal Advice

This article is general analysis and educational reference about U.S. immigration policy and law. It is not legal advice. Immigration adjudication outcomes depend on the specific facts of each case, the visa category, the status history of the applicant, the timing of entry and any departures, the maintenance of lawful nonimmigrant status, and any adverse equities that USCIS officers may weigh under the totality-of-the-circumstances framework. The information here may become outdated as USCIS publishes implementing guidance, federal courts issue rulings on Administrative Procedure Act challenges to PM-602-0199, the USCIS Policy Manual is updated, or future administrations rescind or amend the underlying memorandum.

The author and InsightCrunch are not licensed U.S. immigration attorneys. Reading this article does not create an attorney-client relationship with the author, with InsightCrunch, or with any named scholar or practitioner cited in the article. Consult a licensed U.S. immigration attorney for advice on your specific situation. The American Immigration Lawyers Association maintains a public “Find an Immigration Lawyer” directory at ailalawyer.com. Many AILA member attorneys offer flat-fee or limited-scope initial consultations.