On November 17, 2020, U.S. Citizenship & Immigration Services (USCIS) issued a Policy Alert, informing stakeholders of an update to its existing policy guidance in the USCIS Policy Manual regarding the discretionary factors that officers are instructed to consider in adjudications of Form I-485 adjustment of status (“green card”) applications.

Under section 245(a) of the Immigration and Nationality Act, most adjustment of status applicants (including family-based and employment-based adjustment applicants) have always had the burden of demonstrating eligibility for the benefit sought, including that a favorable exercise of discretion is warranted in their case. 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. In practice, however, USCIS has rarely relied on these discretionary factors as a basis to deny adjustment of status applications. The publication of this new policy guidance suggests that USCIS officers may start placing an increased emphasis on a discretionary analysis as a potential basis for denial, even where applicants satisfy the basic legal requirements for permanent resident status.

Volume 7, Chapter 10 of the USCIS Policy Manual now makes clear that USCIS officers should adjudicate adjustment of status applications using a two-step approach:

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 an approval of an applicant’s adjustment of status application is in the best interest of the United States.

The Policy Manual provides a non-exhaustive list of issues and factors that USCIS officers are now instructed to consider when evaluating whether a positive exercise is discretion is warranted and therefore whether a particular adjustment of status application should be approved. These factors include the applicant’s: family and community ties in the United States; immigration status and history; business ties in the U.S., employment history, and skills; and community standing and moral character. The factors also include a catch-all “Other” category, which permits USCIS officers to consider essentially any “other indicators of good moral character in the United States and abroad,” or “other indicators adversely reflecting on the applicant’s character and undesirability as a [Lawful Permanent Resident] of this country.”

The extremely broad, amorphous nature of the factors that USCIS can consider is troubling and adds significant uncertainty to adjustment of status applications. Applicants may find themselves having gone through the entire – often years-long – permanent residency process and having followed all steps in complete compliance with the law, but if they lack close family/community ties in the U.S., do not demonstrate a history of stable employment, or are otherwise deemed “undesirable” by the adjudicating officer, they could find their applications being denied, despite there being no statutory or regulatory basis for finding them legally ineligible for permanent resident status.  Evaluating whether the positive factors outweigh the negative factors can be highly subjective and inconsistent from case-to-case, and this emphasis on discretion adds more uncertainty to the process.

This policy update is the latest in a line of steps that USCIS has taken to enhance its ability to make subjective decisions on applications for immigration benefits. As relevant to adjustment of status/green card applications, in February 2020, USCIS implemented the Inadmissibility on Public Charge Grounds final rule, which significantly expanded officers’ ability to weight positive and negative factors, and to subjectively evaluate whether an adjustment of status applicant is likely at any time to become a “public charge,” or whether that applicant has sufficiently demonstrated the ability to financially support himself/herself.

The use of discretion was later expanded to additional case types as well. In July, USCIS issued an even broader Policy Alert, updating its Policy Manual to enable and instruct officers to apply discretion to a host of different immigration benefits requests, including Form I-539 applications to change/extend nonimmigrant status, Form I-140 petitions to classify an individual as an employment-based immigrant, Form I-129F petitions to classify an individual as a fiancé(e) of a U.S. citizen, and Form I-765 applications for employment authorization, among others. These applications had historically involved only an analysis of the applicant’s legal eligibility for the benefit/classification sought, but officers are now required to examine both substantive eligibility and evidence relevant to determining whether a positive exercise of discretion is warranted.

The immigration attorneys at Harris Beach will be closely monitoring how this latest policy is rolled out and applied to pending or future adjustment of status applications. If you would like to discuss how this change affects you, your business, or your employees, please contact any member of the Harris Beach immigration team.

Our Immigration Law Practice Group includes immigration attorneys that work across New York state in our Albany, Buffalo, Ithaca, Long Island, New York City, Rochester and Syracuse offices. Our immigration lawyers focus on strategies – including immigrant visas for permanent U.S. resident status and temporary visas for foreign nationals – to ensure that employers are able to hire, transfer, and retain the brightest and best non-U.S. talent.