USCIS Updates Policy Guidance on Discretionary Decisions

The U.S. Citizenship and Immigration Services (USCIS) “policy manual” was recently updated to consolidate guidance related to applying discretion in USCIS adjudications. As noted in the corresponding policy alert, “[f]or many immigration benefits, such as certain applications for lawful permanent residence and employment authorization documents, the benefit requestor has the burden of demonstrating eligibility for the benefit sought, including that a favorable exercise of discretion is warranted.” The policy manual update includes a non-exhaustive list of discretionary factors that the USCIS officer should consider on a case-by-case basis, and explains how they generally should be weighed.

Discretionary Factors that may be Considered

If a foreign national is applying for an immigration benefit that includes a discretionary component, but the applicant does not meet the basic eligibility requirements for the benefit requested, the USCIS officer may deny the case without taking into account any discretionary factors. Assuming the person meets the basic requirements, the discretionary analysis may be applied.

The policy guidance notes that an immigration officer can use any facts related to the foreign national’s “… conduct, character, family ties, other lawful ties to the United States, immigration status, or any other humanitarian concerns …” in determining whether to exercise discretion. Some of the factors that may be considered include the following:

• 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 foreign national began residing in the United States
• 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
• Evidence regarding respect for law and order, good character, and intent to hold family responsibilities
• 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
• Public safety or national security concerns
• Compliance with immigration laws
• Previous instances of fraud or false testimony in dealings with USCIS or any government agency
• Other indicators of an applicant or beneficiary’s character

Discretion in Issuance of Employment Authorization Documents (EADs)

One area where the USCIS has discretion is in the adjudication of an application for employment authorization (form I-765) for the vast majority of EAD categories. Historically, I-765 applications have been approved as a matter of routine, as long as the applicant met the basic eligibility requirements. This policy manual update does not necessarily change how the USCIS adjudicates these applications, but it is now possible that USCIS officers may begin to use this as a means to make the EAD application process more challenging.

Conclusion

This policy manual update is not supposed to create new policy; rather, it should simply consolidate existing policy into the online manual. However, given the Trump Administration’s track record, this certainly raises concerns that it may be the latest attempt to make life more difficult for foreign nationals in the United States.

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