United States | USCIS issues policy guidance regarding discretion in adjustment of status adjudications

U.S. Citizenship and Immigration Services issued a policy memorandum emphasizing that adjustment of status (AOS) is discretionary and that USCIS officers must look at the totality of circumstances during AOS adjudications.

Key takeaways:

Every adjustment of status application must establish that the beneficiary warrants a favorable exercise of discretion by the government. Consistent with longstanding government guidance, USCIS officers are required to weigh “all positive and negative factors, including family ties, immigration status and history, the applicant’s moral character and any other relevant factor that bears on” whether to exercise discretion favorably. Though the policy has been in place for years, the government has not always required applicants to submit evidence, particularly when there was no derogatory information. Going forward, every applicant will need to submit evidence of positive factors to support a favorable exercise of discretion. The memorandum reminds officers that if they deny an immigration benefit, they must issue a denial notice explaining in writing the specific reasons. If a denial is based on an unfavorable exercise of discretion, the notice “must include an analysis containing the positive and negative factors considered, along with an explanation of why the negative factors outweigh the positive factors in the decision.”

The guidance applies immediately to pending and future filings. The memorandum signals that AOS applicants should expect increased scrutiny of immigration and status compliance, intent to immigrate, conduct after arrival in the U.S. and other discretionary factors.

The guidance does not eliminate in-country adjustment of status as a pathway to obtaining a green card. Despite messaging in the USCIS news release that the agency will no longer consider AOS applications except in extraordinary circumstances and that applicants must return to their home country to apply, the memorandum does not make this change. The memorandum directs USCIS adjudicators to conduct a balancing test.

Review the full policy memorandum to USCIS immigration officers here.

Additional information: BAL continues to analyze the impact of this development and provide case-specific guidance and support to clients.

This alert has been provided by the BAL U.S. Practice Group. 

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