Two-Year Pending I-485? The Case for Lying Low in 2026

A marriage-based I-485 filed in November 2024 has been pending at USCIS for nineteen months. The applicant has a five-year employment authorization document, a five-year advance parole, no request for evidence, and no interview notice. He has called USCIS twice in the last six months to ask for an update. Both responses said the case is awaiting an interview slot. The attorney’s advice on the June 9 Immigration Answer Show was the inverse of what it would have been a year ago.

The caller fell out of F-1 status two months after marrying his U.S. citizen wife in 2024 when his school terminated his SEVIS record after he stopped attending classes. He filed the I-485 in November 2024 disclosing the out-of-status period. The file has sat at the Kansas City Field Office ever since.

The reasoning Hacking walked the caller through frames the new calculus. Under PM-602-0199, issued May 21, 2026, USCIS adjudicators are directed to weigh “balance of factors” against the applicant — prior status violations, unauthorized employment, conduct inconsistent with the original visa purpose. A file that has been sitting in queue is, in 2026, a file an adjudicator has not yet looked at with the new instructions in hand.

Hacking walked the caller through the hypothetical from the adjudicator’s seat:

USCIS Director Joseph Edlow, who took office in July 2025, has publicly framed adjustment of status as a discretionary benefit that the agency will issue sparingly going forward. His May 21 policy directive operationalized that framing.

For an applicant with the caller’s profile — out-of-status period documented on the application, no degree completed, work for a foreign employer during the F-1 — the documents that look benign on a 2024 record look different against the INA § 245(a) discretion the memo now invites officers to exercise:

• The out-of-status disclosure. Honest, but the discretionary factor it triggers is “compliance with the conditions of the visa or parole under which the applicant entered the United States.”
• Two completed semesters, no degree. Read against the May 21 memo’s “conduct inconsistent with the applicant’s stated purpose of entry,” the abbreviated study record is the exact pattern the memo flags.
• Foreign-employer remote work during F-1. Unauthorized employment is a discretionary factor and, on a separate track, the INA § 245(c)(2) unauthorized-employment bar that is forgiven only for immediate relatives of U.S. citizens.

None of those facts is fixable now. The five-year EAD and advance parole are the operative documents. They authorize work and re-entry through 2029. They do not require renewal during the period a court challenge to the May 21 memo is being litigated.

The strategic argument for silence rests on three observations the bar has been making since the memo issued:

• An inquiry surfaces the file. Tier-2 case inquiries and congressional liaisons route the I-485 to an adjudicator’s queue. In 2024 that was the goal. In 2026 it puts the file in front of an officer trained on the new discretion factors.
• An interview notice triggers the discretionary review. The Notice of Action that schedules a marriage-based I-485 interview is the moment at which the adjudicator’s gold-star/black-check posture attaches to the file. Delay favors the applicant.
• The May 21 memo is being challenged in court. Multiple lawsuits are queued, and a Dorcas-style vacatur would remove the legal authority for any “balance of factors” denial. The longer the file sits, the more likely the litigation lands before the interview.

The advice does not extend to applicants whose EADs are nearing expiration, whose travel plans require an emergency advance parole adjudication, or whose underlying eligibility is time-sensitive in some other way. For those filers, USCIS contact is unavoidable. The advice is narrow: applicants who already have what they functionally need — work authorization and re-entry — should not poke a file that an adjudicator has not yet picked up.

The shift the advice represents is generational for the practice. Tier-2 inquiries, case-assistance forms from Senate offices, and Ombudsman referrals have for two decades been the standard tools for moving a stuck file forward. The CIS Ombudsman case assistance procedure remains formally available. What changed in May is the assumption underlying its use — that an adjudicator looking at a file with current guidance was more likely to approve than to deny.

That assumption no longer holds.