USCIS Updates Policy Guidance Regarding the Use of Discretion for Adjustment of Status

खसोखास अमेरिका ब्यूरो

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प्रकाशित मिति : मंसिर २, २०७७ मंगलबार

U.S. Citizenship and Immigration Services (USCIS) updates existing policy guidance in the USCIS Policy Manual regarding the discretionary factors to consider in adjudications of adjustment of status applications.

For adjustment of status, the applicant has the burden of demonstrating eligibility, including that a favorable exercise of discretion is warranted. If the applicant otherwise establishes eligibility and USCIS finds the positive discretionary factors in a particular case outweigh the negative factors, the officer should exercise favorable discretion and approve the adjustment application.

Conversely, if the negative factors outweigh the positive factors an exercise of discretion to deny is appropriate. USCIS considers the totality of the circumstances, which may include factors such as an applicant’s conduct, character, family or other lawful ties to the United States, immigration status and history, or any other humanitarian concerns, to determine whether the applicant warrants a favorable exercise of discretion.

This guidance, contained in Volume 7 of the Policy Manual, is effective immediately. The guidance in the Policy Manual is controlling and supersedes any related prior guidance on the topic.

Policy consolidates existing guidance on the privileges, rights, and responsibilities of lawful permanent residents. Policy clarifies the list of factors or factual circumstances for adjustment of status that officers consider when conducting a discretionary analysis.

Adjustment of Status Applications Involving Discretion

Most adjustment of status applicants may only be granted lawful permanent resident (LPR) status in the discretion of USCIS. That is, even if the applicant meets all of the other statutory and regulatory requirements, USCIS only approves the application if the applicant demonstrates that he or she warrants a favorable exercise of discretion. The following table is a non-exhaustive list of discretionary adjustment case types.

Adjustment of Status Provisions Involving Discretion :

Family-based, employment-based, and diversity visa adjustment, Special immigrant-based adjustment (EB-4), Trafficking victim-based adjustment, Crime victim-based adjustment, Asylee adjustment, Cuban Adjustment Act, Former Soviet Union, Indochinese, or Iranian parolees (Lautenberg parolees), Diplomats or high-ranking officials unable to return home (Section 13 of the Act of September 11, 1957).

Determining Whether Favorable Exercise of Discretion is Warranted

The favorable exercise of discretion and the approval of a discretionary adjustment of status application is a matter of administrative grace, which means that the application is worthy of favorable consideration.

An applicant who meets the other eligibility requirements contained in the law is not automatically entitled to adjustment of status. The applicant still has the burden of proving that he or she warrants a favorable exercise of discretion. To determine whether adjustment is warranted, an applicant should supply information that is relevant and material.

An officer must first determine whether the applicant otherwise meets the statutory and regulatory eligibility requirements. For example, in adjudicating an application for adjustment of status under INA 245(a), the officer first determines if the applicant is barred from applying for adjustment, is eligible to receive an immigrant visa, is admissible to the United States, and if a visa number (if required) is immediately available.

If the officer finds that the applicant otherwise meets the eligibility requirements, the officer then determines whether the application should be approved as a matter of discretion. Given the significant privileges, rights, and responsibilities granted to LPRs, an officer must consider and weigh all relevant evidence in the record, taking into account the totality of the circumstances to determine whether or not an approval of an applicant’s adjustment of status application is in the best interest of the United States.

If there is no evidence that the applicant has negative factors present in his or her case, or if the officer finds that the applicant’s positive factors outweigh the negative factors such that the applicant’s adjustment is warranted and in the interest of the United States, the officer generally may exercise favorable discretion and approve the application. If the officer finds that the applicant’s negative factors outweigh the positive factors, such that a favorable exercise of discretion is not warranted in the applicant’s case, the officer must deny the application.

Issues and Factors to Consider in the Totality of the Circumstances

Family and Community Ties 

Positive Factors:

• Family ties to the United States and the closeness of the underlying relationships.
• Hardship to the applicant or close relatives if the adjustment application is denied.
• Length of lawful residence in the United States, status held and conduct during that residence, particularly if the applicant began his or her residency at a young age.

Negative Factors:

• Absence of close family, community, and residence ties.

Immigration Status and History

Positive Factors:

• Compliance with immigration laws and the conditions of any immigration status held.

• Approved humanitarian-based immigrant or nonimmigrant petition, waiver of inadmissibility, or other form of relief and the underlying humanitarian, hardship, or other factors that resulted in the approval.

Negative Factors:

• Violations of immigration laws and the conditions of any immigration status held.

• Current or previous instances of fraud or false testimony in dealings with USCIS or any government agency.

• Unexecuted exclusion, deportation, or removal orders.

Business, Employment, and Skills

Positive Factors:

• Property, investment, or business ties in the United States.

• Employment history, including type, length, and stability of the employment.

• Education, specialized skills, and training obtained from an educational institution in the United States relevant to current or prospective employment and earning potential in the United States.

Negative Factors:

• History of unemployment or underemployment.

• Unauthorized employment in the United States.

• Employment or income from illegal activity or sources, including, but not limited to, income gained illegally from drug sales, illegal gambling, prostitution, or alien smuggling.

Community Standing and Moral Character

Positive Factors:

• Respect for law and order, and good moral character (in the United States and abroad) demonstrated by a lack of a criminal record and evidence of good standing in the community.

• Honorable service in the U.S. armed forces or other evidence of value and service to the community.

• Compliance with tax laws.

• Current or past cooperation with law enforcement authorities.

• Demonstration of reformed or rehabilitated criminal conduct, where applicable.

• Community service beyond any imposed by the courts.

Negative Factors:

• Moral depravity or criminal tendencies (in the United States and abroad) reflected by a single serious crime or an active or long criminal record, including the nature, seriousness, and recent occurrence of criminal violations.

• Lack of reformation of character or rehabilitation.

• Public safety or national security concerns.

• Failure to meet tax obligations.

• Failure to pay child support.

• Failure to comply with any applicable civil court orders.

Other

Positive Factors:

Absence of significant undesirable or negative factors and other indicators of good moral character in the United States and abroad.

Negative Factors:

Other indicators adversely reflecting the applicant’s character and undesirability as an LPR of this country.

Proper Use of Discretion Relative to Adjustment of Status

The exercise of discretion does not mean the decision can be arbitrary, inconsistent, or dependent on intangible or imagined circumstances. At the same time, the exercise of discretion does not involve a calculation or bright line test that is outcome determinative.

The officer should review the entire record and give appropriate weight to the negative and positive factors relative to the privileges, rights, and responsibilities of LPR status. Once the officer has weighed each factor, the officer should consider all of the factors cumulatively to determine whether the positive factors outweigh the negative ones. If the officer determines that the positive factors outweigh the negative factors, the officer may find that the applicant warrants a favorable exercise of discretion. As negative factors grow more serious though, a favorable exercise of discretion may not be warranted without additional offsetting favorable factors, which in some cases may have to involve the existence of unusual or outstanding equities.

Officers should discuss discretionary decisions that involve complex or unusual facts with their supervisors, as needed, particularly those involving criminality or national security issues, regardless of whether the outcome is favorable or unfavorable to the applicant. As appropriate, supervisors may raise issues and consult USCIS counsel.

Source: USCIS