USCIS has made updates to its policy manual on the way they would adjudicate Adjustment of Status(AOS) applications filed using Form I-485 on Nov 17th, 2020. The updated policy memo has new “Discretionary Factors” that would be used to make a decision on the Adjustment of Status(AOS) application with USCIS for getting Green Card. In this article, we will cover the background, policy manual changes and how it can impact.
Background: How does USCIS use Discretion Policy ?
The concept of using “discretion” in immigration law is of two types one is prosecutorial (for enforcement) and other is adjudicative (to judge or decide). USCIS uses the adjudicative discretion. USCIS uses this “discretion” in adjudication of many forms, including Adjustment of status. In fact, earlier this year USCIS updated Discretion Policy for H4, F1, L2, EADs others.
In general, if there is a policy or rule that says USCIS officer can use “discretion” for adjudicating an application, then the officer has authority to use his discretion (freedom to decide) to adjudicate the petition and take decision like approval or denial on a petition or application.
Previous Policy Guidance on Discretion for AOS Applications
Usually, the guidance to use discretion for adjudication of an application or petition in typical policy manual is very broad. It was the case before the policy update from Nov 17th, 2020. The below screenshot is the previous policy on discretion for adjudication of Adjustment of Status (AOS) Applications.
As you can see, the guidance was very generic and only considered only one situation where an officer can deny, which is when there is a removal order for the foreign national. Even then, the officer should consult with the local ICE to exercise that. You can check USCIS previous Discretion Policy at archive.org
What is the Policy Update on Discretion for AOS Applications?
In the past, for USCIS officers to use “discretion”, there were just bullet points items such as: eligibility, immigration status & history, family unity, length of stay in us, community standing , etc. It did not give any specific guidance on how to apply discretion in those areas. They were just asked to look for positive and negative factors in those areas and apply officer basic judgment or common sense to make a decision on the application.
Now, the updated policy manual has a lot of details on each of these “discretion” categories on what constitutes a positive factor or negative factor.
Discretionary Factors for Adjustment of Status Application
Below are the various discretionary factors that the USCIS officer has to consider adjudicating an Adjustment of Status(AOS) application. Let’s look at each of them in detail.
If the green card applicant meets all the eligibility requirements then it is a positive factor for use of discretion. If the user does not meet the requirements, then it can still be used for discretionary analysis and can be treated as a negative factor.
Discretion on Family and Community Ties
If the adjustment of status applicant has strong ties in US, then it is positive factor. If there are no ties, then negative factors. Below are some examples
- If the applicant has a family with kids or any other close relatives, it is a positive factor as it shows family ties.
- If the applicant stayed in the country for long time, it is a positive factor.
- If the applicant has stayed in US from young age, that is also a positive factor.
- If the applicant’s adjustment of status application is denied, then his family will have hard time to live in the US, then it is a positive factor.
- If applicant is single or stayed only in country for short period of time, etc. then it will be treated as a negative factor.
- All of these examples are based on previous decisions by immigration judges – Matter of Buscemi , Matter of Arai, Matter of Marin
Immigration Status and History
The USCIS officer would look at the immigration status and general history of the applicant. Below are some examples of positive and negative factors.
- If the applicant held legal immigration status for entire duration in the US, it is a positive factor.
- If the applicant had any humanitarian-based reliefs granted previously, that would also act as a positive factor.
- If the applicant violated any immigration status then, it is a negative factor.
- If the applicant violated any of the immigration rules like entering US without proper visa or engaged in fraud for entry to US then it is a negative factor
- If the applicant has any pending deportation or removal order, then it is negative factor.
- If the applicant has lied with government agency about anything for a benefit or committed any fraud, then it is a negative factor.
Business, Employment and Skills
The USCIS officer would look at areas such as investments, education, employment and skills of the applicant and use their discretion. Below are some examples of the same
- If applicant has any business ties in the US like bought a property, invested in any business or done anything to indicate business ties in US, then it is a positive factor.
- If the applicant has been employed most of the times and had a stable job, then it is positive factor.
- If the applicant has specialized skills or has education from US that has future potential then, it is a positive factor.
- If the applicant has gaps in employment or the person was involved in unauthorized employment, then it is negative factor
- If the applicant was involved in selling drugs, prostitution, robbery, illegal gambling, or anything that is not legal source of income, then such all would be considered as negative factors.
Community Standing and Moral Character
The USCIS officer would review the applicant’s moral character and his behaviour in the community and use their discretion. Below are some examples of positive and negative factors.
- If the applicant followed law and order in US, does not have any criminal record then it is positive factor.
- If the applicant paid taxes properly and cooperated with enforcement officials, where applicable, then it is a positive factor.
- If the applicant did not pay taxes, failed to pay for child support, failed to comply with court orders, then it is a negative factor.
- If the applicant served in US armed forces or did any community service, it will be positive factor.
- If the applicant did not follow law and had any criminal record on his file. e.g. Driving Under Influence (DUI), then it is a negative factor. Generally DUI is classified as criminal offense.
- This is slightly grey area and not explicitly written in the policy update. For example, if the applicant repeatedly did not follow law and order like having many traffic violations or speeding tickets in short duration and pose risk to community, it can be treated as negative factor.
- If the applicant has any of the below items that are listed in screenshot, taken from USCIS guidance Notice to Appear Policy Memo, they all are negative factors.
- If the applicant had any criminal conduct but demonstrated reformed character with rehabilitation or did community service beyond the court orders, then it is a positive factor.
- If the applicant is of national security concern, then it is a negative factor.
Now that we understand the factors that they would look at, let’s review how they would assess the application.
How USCIS Officers assess Discretionary Factors ?
USCIS officers cannot assign points to each of the factors listed above and come up with a number to make a decision. Rather, they need to look at the entire applicant situation on the whole and come up with a decision. Below is the high-level guidance for them.
- Approve AOS Application : If the applicant meets all the requirements and their positive factors outweigh the negative factors, then such applicant’s Adjustment of Status application would be approved.
- Deny AOS Application : There are couple of scenarios to deny the application as listed below
- Applicant met requirements: If the applicant met all the requirements, but the negative factors outweigh the positive factors, then they could deny such adjustment of status applications. In case of denial based on discretion, USCIS officer has to explain the reason for denial with the positive and negative factors considered.
- Applicant did not meet requirements: If the applicant did not meet requirements, then the USCIS officer would deny the application. Even, if the positive factors outweigh the negative factors, they cannot approve the AOS application just based on the discretion. The applicant has to meet all requirements. Also, the officer would need to explain why the applicant did not meet the requirements.
When is it effective ?
The new updated policy on discretion is effective from the day they published the updated policy. They clearly said it is effective immediately. So, it has been effective from Nov 17th, 2020.
Overall, the discretion policy is very subjective and now there are more reasons for the USCIS officer to deny the Adjustments of status application. If you believe, you may have any negative factors, you should discuss with your immigration attorney.
What do you think of the change in Policy Memo ? Add your thoughts in comments.
You can check the current official USCIS Policy Manual on Discretion