USCIS Policy Memorandum PM-602-0199, issued May 21, 2026, reaffirmed that adjustment of status under INA section 245 is discretionary. Immigration law firm analyses published in the weeks after the memorandum consistently identify seven categories of negative factors that adjudicators weigh most heavily. This article describes each category in plain English and explains what primary-source records help an attorney assess a specific situation. Nothing here predicts an outcome.

What PM-602-0199 Changed About Negative Factors

PM-602-0199 did not create new negative factors. The seven categories below were already part of the discretionary analysis under the USCIS Policy Manual Volume 7, Part B. What the May 2026 memorandum changed is the documentation burden: officers are now expected to articulate, on the record, how each positive and negative factor was weighed. For applicants, that translates into a more documentation-intensive filing posture. The can I still file explainer covers the statutory eligibility question, which is separate from how discretion is exercised. The categories below describe the discretionary side.

The 7 Negative Factor Categories

Each of the seven categories below is descriptive — drawn from immigration law firm advisories analyzing the May 2026 memorandum and the underlying USCIS Policy Manual. The categories are not ranked; their weight depends on facts, duration, disposition, and the totality of the record. An attorney can advise how a specific situation maps onto each category.

1. Documented Unauthorized Presence

Unauthorized presence refers to time accrued in the United States after a period of authorized stay ended — for example, after an I-94 expiration without a timely extension, change of status, or qualifying filing. USCIS adjudicators weigh duration, whether tolling provisions applied, and whether any waiver pathway is relevant. Primary-source records that help an attorney assess this category include all prior I-94 admission records (retrievable from CBP), every Form I-797 approval and receipt notice, prior change-of-status or extension filings, and documentation of any pending applications that may have tolled unlawful presence. INA section 245(c) bars and the section 245(k) exception for certain employment-based cases interact with this category in fact-specific ways. PM-602-0199 reaffirmed that unauthorized presence remains a discretionary negative factor; the memorandum did not amend the underlying statutory bars. An attorney can advise whether documented unauthorized presence in a given timeline implicates a statutory bar, a discretionary factor, or both.

2. Unauthorized Employment

Unauthorized employment means work performed in the United States without valid work authorization for the period and employer involved. This category is distinct from unauthorized presence — an individual can have one without the other. Records that help an attorney assess this category include every EAD (Form I-766) issued and its validity dates, every I-94 record showing work-authorized status (such as H-1B or L-1), pay stubs and W-2s corresponding to the periods in question, and any prior I-9 documentation an employer can provide. INA section 245(c)(2) and (c)(8) bars on adjustment for unauthorized employment have specific carve-outs, including the section 245(k) exception. PM-602-0199 reaffirmed unauthorized employment as a recurring negative factor in the discretionary analysis. An attorney can advise whether a given employment history triggers a statutory bar, a discretionary concern, or neither.

3. Prior Visa Denials or Withdrawals

Prior denials, withdrawals, or refusals on any U.S. visa application — nonimmigrant or immigrant — sit in the discretionary record. This includes B-1/B-2 refusals at consulates, prior H-1B denials, withdrawn I-129 petitions, prior I-485 denials, and 221(g) refusals that were never resolved. Records that help an attorney assess this category include every prior visa application receipt and decision notice, any consular refusal documentation, every prior USCIS receipt and decision, and the underlying basis cited for each negative outcome. The relevance of a prior denial depends heavily on the basis: a denial for missing documentation reads differently from a denial citing misrepresentation or ineligibility. PM-602-0199 did not change how prior denials are weighed; the memorandum reaffirmed that the entire immigration history is part of the discretionary record. An attorney can advise how to address each prior negative outcome in a current filing.

4. Arrest or Criminal Records (Any Disposition)

Any arrest in the United States or abroad — regardless of conviction, dismissal, expungement, or diversion outcome — belongs in the discretionary record. USCIS disclosure obligations on Form I-485 require disclosure of arrests even when no charges were filed and even when a record was expunged under state law. Records that help an attorney assess this category include certified court dispositions for every arrest, police reports where obtainable, charging documents, plea or sentencing records, and proof of completion of any required programs. The interaction with inadmissibility under INA section 212(a)(2) is fact-specific: some convictions trigger statutory inadmissibility, others affect only the discretionary analysis, and some have neither effect. PM-602-0199 reaffirmed that criminal history is a recurring negative factor in discretion. An attorney can advise how each disposition should be documented and addressed.

5. Prior Immigration Misrepresentation (Form-Based or Interview-Based)

Misrepresentation in a prior immigration context — on any form, at any consular interview, at any port of entry, or to any government agent — is a serious negative factor and may also trigger statutory inadmissibility under INA section 212(a)(6)(C). This category includes both willful misrepresentation and fraud, as well as material omissions. Records that help an attorney assess this category include every prior immigration form filed (with copies of supporting documents submitted), consular interview notes where obtainable, prior I-275 or I-867 records from CBP, and any prior 212(a)(6)(C) findings. The 212(i) waiver pathway exists for some categories of misrepresentation but not all. PM-602-0199 reaffirmed misrepresentation as one of the most heavily weighted negative factors in discretion. An attorney can advise whether a prior statement reaches the threshold of misrepresentation under the statute and how to document the discretionary record.

6. Federal Tax Noncompliance

Federal tax noncompliance — unfiled returns, unresolved balances owed, or open IRS issues — appears as a discretionary negative factor in USCIS analyses. The category covers both periods of work authorization and periods of unauthorized work, since the IRS requires reporting regardless of work-authorization status. Records that help an attorney assess this category include IRS account transcripts for each year in question, tax return transcripts, any installment agreements or offer-in-compromise documentation, and proof of payments made. State and local tax issues sit in a separate analytical bucket from federal. PM-602-0199 reaffirmed federal tax compliance as a discretionary factor; the memorandum did not change underlying IRS or INA requirements. An attorney can advise how to document a tax history — including unresolved items in active resolution — in a way that addresses the discretionary record.

7. Preconceived Intent at Most Recent U.S. Entry

Preconceived intent refers to entering the United States on a nonimmigrant visa (such as B-1/B-2, F-1, or J-1) while already intending to remain permanently. Unlike dual-intent visas, most nonimmigrant categories require a bona fide nonimmigrant intent at entry. The H-1B dual-intent explainer covers the dual-intent exception. Records that help an attorney assess this category include the most recent CBP I-94 record, the visa application (DS-160) submitted, any documentation of the purpose of entry, employment offers or marriage timelines relative to entry, and any evidence of intent at the time of the visa interview. The 30/60-day analytical framework historically used by USCIS for preconceived intent remains relevant. PM-602-0199 reaffirmed preconceived intent as a discretionary negative factor in cases where the most recent entry was on a non-dual-intent visa. An attorney can advise how the facts of a most-recent entry map onto this category.

How To Prepare to Discuss Negative Factors With an Attorney

For each category above, an attorney consultation goes more efficiently when the primary-source records — not summaries, not memories — are organized in advance. That means certified court dispositions, full IRS transcripts, every I-94 and I-797, every prior visa application and decision, and a written timeline. The unusual outstanding equities explainer covers the positive side of the discretionary record, which an attorney weighs against the negative factors above. For cases already pending at USCIS, the pending I-485 explainer covers how the May 2026 memorandum interacts with cases filed before the policy change.

Next Steps

The Adjustment Status Navigator intake walks through each of the seven categories above in neutral, fact-gathering language and produces an organized brief an attorney can review at the start of a consultation. The chatbot answers descriptive questions about the categories and the May 2026 memorandum without providing case-specific advice. Both tools are designed to make the first attorney meeting more productive — not to substitute for one.

Updated May 24, 2026.