USCIS issued a policy update consolidating their guidance to apply “Discretion” for adjudication of various petitions/ applications that are filed with USCIS, including the ones related to Employment Authorization (EAD). This consolidation is a result of Trump Executive Order that banned H1B, H4 Visas entry to US and gave other directions to DOL, DHS to scrutinize the US Work Authorization related policies. In this article, we will look at what is “Discretion” in context of application or benefit adjudication with USCIS. Also, how it is typically used by USCIS and all visa types, forms impacted by this.
What is “Discretion” by USCIS for Adjudication?
In context of immigration law, “Discretion” is of two types, one is prosecutorial (for enforcement) and other is adjudicative (to judge or decide). USCIS uses the adjudicative one. This is not something new, it has been used by USCIS in certain kinds of petitions or interviews decisions. If applicable for a form type or case, USCIS officer has the authority to use his discretion (freedom to decide) to adjudicate the petition and take decision like approval or denial on a petition or case.
How is Discretion used by USCIS Officer? Example?
USCIS officers would look at all the factors in the case or petition, then look at the positive and negative factors related to the petition to make a decision using their discretion (personal judgment). If the positive factors outweigh the negative factors, then they would give favorable decision. But, if negative factors outweigh then they can deny the petition.
If USCIS Officer denies a case or petition, they would to give explanation for the same as why they denied based on their discretion. They would clearly explain which negative factors outweighed the positive factors. They cannot deny a petition without proper explanation or evidence that indicates their decision.
Example : Let’s say there is someone applying to be a permanent resident in US. In this case, the Officer would look at social and humane aspects of the individual that are in best interest of US. Imagine someone with criminal history like arrests for drugs or fraud, etc. Some of these actions are not socially acceptable and not in best interest of US as a Country. So, the officer can deny based on their discretion. There is a big list of items that are used for this, we will look at some of these factors later in article.
USCIS Forms with Discretionary Review
The USCIS policy memo expands some of the scope of the ability to use discretion for adjudication of a petition or case. Below are some of the general visa types & related forms that are impacted. We look at the full list of EADs and impact separately at the end.
|USCIS Form/ Visa Type/ Benefit||Discretionary Review|
|H1B, L1, Other using I-129 Form||No (some exceptions)|
|H4, F1, L2 Extensions, COS using I-539 Form||Yes|
|EAD for H4, F1 OPT, STEM OPT, AOS, Others using I-765 Form||Yes (some exceptions)|
|Employment based Green Card Petitions using I-140||Yes|
|EB-5 Investor using form I-526||Yes|
|Adjustment of Status (AOS), Registration using form I-485||Yes (some exceptions)|
|Humanitarian Parole, TPS, Refugee, Asylum||Yes|
|K1, K2, K3, K4 using form I-129 F||Yes|
|Naturalization, Citizenship Certificate||No|
Also, USCIS will apply USCIS discretion to the below Employment Authorization Categories as well.
Employment Authorization Applications with Discretionary Review – H4 EAD, F1
USCIS in its Policy manual under Employment Authorization clearly indicates the list of categories of EAD that will have discretionary review. They call the Employment Authorization that are subject to this discretionary review as Category C Applicants and they are listed at 8 CFR 274a.12(c). If you look closely, there is no L2 EAD in the list.
List of EAD Categories that are subject to discretionary review
- F1 Visa – OPT, STEM OPT, Economic Hardship, M1 Visa
- H4 Visa
- DACA Holders
- Adjustment of Cases
- Dependents of Visa holders in A1, A2, E1, E2, G1, G3, G4, J2, NATO-1 through NATO-7
- Certain Asylum cases, Domestic Servants, TPS, S Visas, T2, T3, T4, T5, T6
You may watch below YouTube Video that covers all aspects in article
How will USCIS use Discretionary Review for applicable cases?
Below is the high-level process they would follow for discretionary review
Step 1 – Fact Finding: USCIS officer would gather all the facts, proofs that are relevant to the case like immigration history, criminal history, eligibility requirements, public safety info, etc. It is applicant’s responsibility to make sure they submit all the required documentation for general eligibility and discretionary analysis.
Step 2 – Check Basic Eligibility : As a baseline, USCIS officers would first look if the petition is meeting all the basic requirements that someone is applying for. If not, they do not need to do the discretionary review for the same. The general rule is that, if something is missing, they can technically deny a petition by stating that it does not meet requirements. If the officer is convinced with basic requirements, then they can go for discretionary analysis. The discretionary analysis is the final step.
Step 3 – Review Discretionary Factors : USCIS officer would look at many discretionary factors that are related to the applicant’s conduct, character, family ties, immigration status, ties to United States, etc. For conduct, they would check how the applicant entered US, what they have done since arrival like studying, working, any criminal activity, etc. Ties to US could include owning real estate or business, the legitimacy of business, etc.
There is no exact full list of factors that USCIS would use for discretionary analysis. Having said that, below are some of the common list of discretionary factors that USICS can consider for adjudication.
- Eligibility for the benefit or form applying with USCIS.
- History of employment, taxes paid.
- Compliance of Immigration rules like maintain status
- Criminal history in US and abroad
- Public Safety issues or national security concerns
- Fraud or false testimony with USCIS or other Govt agencies.
- If family-based immigration petitions – family ties, relationship closeness
- Service in US Armed forces
- Ties to US as part of owning a business or real estate.
- Community service or any other things related to beneficiary character.
- For Marriage based green cards, if false intent to marry only for GC
- Many other factors, USCIS would look at relevant aspects for the case.
Step 4 – Weighing Factors based on Benefit / Petition, Adjudicating: USCIS officer would look the all the above factors that are relevant for the benefit or petition that was filed with USCIS and weigh them as positive or negative to come up with a decision. They would look at the case in total and not specific. It is similar to the Public Charge Determination Factors for Form I-944.
They cannot give points for each factor and come up with a decision, but rather look at it as a whole. If the positive factors outweigh negative factors, then they would give approval or favorable decision. If negative factors outweigh positive, then they would deny the same and are required to provide explanation for the same. They cannot just deny saying it is their discretion, they need to clearly explain in denial notice the factors considered and why negative factors outweigh positive factors that led to the decision. If no negative factors, then it is technically a positive factor as they met the general requirements and they will approve the petition or benefit.
Now, let look at the impact specific for Employment Authorization applications.
Impact to Nonimmigrant Workers H1B, L1, Others using I-129 form
As per the Policy Manual, there is no direct impact for non-immigrant visa workers on H1B visa, L1 visa holders that use I-129 form with USCIS, except few exceptions. Below is the actual screenshot from USCIS policy manual. So, nothing to worry for H1B or L1 visa holders.
Impact to Employment Authorization (EAD) Applicants – H4 EAD, F1
While the ability to apply discretion for applications is not new for USCIS, they have explicitly mentioned in the policy memo that they are doing some changes in context of the Trump’s executive order related to unemployment situation in US. So, they want to ensure EADs are given to individuals who are in proper status and have not violated any rules in US.
Some of the areas USCIS could potentially look at are
- Did the individual maintain F1 or H4 status all the time, when in US.
- Did the applicant pay taxes properly.
- Did the applicant maintained F1 visa status like enrolled full time, used CPT properly.
- Were F1 students in any Day 1 CPT that violating status
- Not involved in any kind of business fraud or as such in past.
- It could be many other things related to conduct.
The discretionary review may or may not be as extensive as for an Adjustment of Status to get Green Card. We need to wait and see. The biggest issue is that they are not subject to Administrative Appeal. See below screenshot with actual info from Policy manual.
While, the discretion applicability is pretty broad, still this is going to be slightly tricky, if the EAD applicant failed to maintain status or is involved in anything that is violation of status. USCIS has the right to deny and give explanation of the same. We need to wait and see how USCIS will handle these going forward.
The updated policy memo on discretion is effective from July 15th, 2020.
It is too early to say this. But, USCIS cannot give EAD denials without proper explanation based on the discretion analysis. If the applicants have good status, have not been involved in any conduct related issues, paid taxes, they should be fine.
They have not given any specific exceptions in the press release. So, as the policy is effective from July 15th, it would apply to all pending petitions as well.
What do you think of the USCIS discretion review for many EAD applications? Share your thoughts in comments.
References : USCIS Policy Alert