On July 15, 2020, USCIS released a Policy Alert (PA-2020-10) updating the USCIS Policy Manual regarding the application of discretion in benefits adjudications. The matter of discretion is not a new component of adjudicating immigration benefits. However, in the past it has been sparingly and liberally applied in the adjudication process. The proposed policy updates are a stark contrast to this previous practice and is cause for concern.
The Policy Manual is not precision in how this discretionary authority will be applied to the adjudicatory process. However, USCIS does indicate that “[i]n short, discretion is defined as the ability or power to exercise sound judgment in decision-making.” The Policy Manual contains a list of factors to consider that includes, but is not limited to:
- Whether the requestor is eligible for the benefit sought;
- The applicant or beneficiary’s ties to family members in the United States and the closeness of the underlying relationships;
- Hardship due to an adverse decision;
- The applicant or beneficiary’s value and service to the community;
- Length of the applicant or beneficiary’s lawful residence in the United States and status held during that residence, including the age at which the alien began residing in the United States;
- Service in the U.S. armed forces;
- History of employment;
- Property or business ties in the United States;
- History of taxes paid;
- Nature and underlying circumstances of any inadmissibility grounds at issue, the seriousness of the violations, and whether the applicant or beneficiary is eligible for a waiver of inadmissibility or other form of relief;
- Likelihood that lawful permanent resident (LPR) status will ensue soon;
- Evidence regarding respect for law and order, good character, and intent to hold family responsibilities (for example, affidavits from family, friends, and responsible community representatives);
- Criminal history (in the United States and abroad) and whether the applicant or beneficiary has rehabilitated and reformed;
- Community service beyond any imposed by the courts;
- Whether the alien is under an unexecuted administratively final removal, deportation, or exclusion order;
- Public safety or national security concerns;
- Moral depravity or criminal tendencies reflected by a single serious crime or an ongoing or continuing criminal record, with attention to the nature, scope, seriousness, and recent occurrence of criminal activity.
- Findings of juvenile delinquency;
- Compliance with immigration laws;
- Previous instances of fraud or false testimony in dealings with USCIS or any government agency;
- Marriage to a U.S. citizen or LPR for the primary purpose of circumventing immigration laws;
- Other indicators of an applicant or beneficiary’s character.
There is no formula for determining the weight to be given a specific positive or negative factor. Officers should not attempt to assign numbers or points to a specific factor to determine if one factor is more or less favorable than another. Officers should consider each factor separately and then all the factors as a whole. The negative and positive factors should be balanced against each other and then evaluated cumulatively. The weight given to each factor may vary depending on the facts of a particular case as well as the relationship of the factor to other factors in the analysis.
Applications Subject to Discretionary Analysis
- Petition to classify an alien as a fiancé(e) of a U.S. citizen;
- Application to extend or change nonimmigrant status;
- Advance permission to enter as a nonimmigrant;
- Humanitarian parole;
- Temporary Refugee status (noting an exception for following-to-join refugee adjudications which do not contain discretion in the adjudication of such benefits);
- Petition to classify an alien as an employment-based immigrant;
- Petition to classify an alien as an immigrant investor;
- Adjustment of status (noting some exceptions: Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA); refugee-based adjustment under INA 209(a)(2); adjustment of status based on Haitian Refugee Immigration Fairness Act of 1998 (HRIFA); adjustment of status based on Liberian Refugee Immigration Fairness (LRIF));
- Waivers of inadmissibility;
- Consent to reapply for admission after deportation or removal; and
- Employment authorization (noting an exception for asylum applicants filing under 8 CFR 274a.12(c)(8))y protected status
In the event an application/petition is denied as a matter of discretion, the denial must:
- Indicate the decision to deny was made as a matter of discretion;
- Identify, specifically, each positive factor presented by the facts of the case;
- Identify, specifically, each negative factor;
- Explain the relative decisional weight given to each negative and positive factor; and
- Explain the cumulative weight given to the negative and positive factors, and the reason for the outcome
The enhanced emphasis placed by USCIS on this discretionary analysis will require immigrants submitting any application to have to gather a significantly increased amount of evidence to support their application/petition.
In practice, even when an immigrant has no serious negative equities and meets the eligibility requirements for an application, they will bear a burden of producing evidence of family ties, community involvement, employment, and education to demonstrate positive equities, in order to support their application. Immigrants can expect longer adjudication times based on the increased amount of evidence to be evaluated and time required to adjudicate these applications, coupled with the financial struggles faced by the agency.