USCIS Adds a List of Factors That May Be Relevant in Considering Adjusting an Applicant’s Status

Status Application Adjustments Guidelines Updated by USCIS

Written by Taher Kameli & Chathan Vemuri

On November 17, 2020, the United States Citizenship and Immigration Services (USCIS) updated their guidelines in their Policy Manual regarding what type of discretion the Department of Homeland Security (DHS) should use in adjudicating status application adjustments.[1] Typically, in order to get approval for adjustment of his/her/their immigration status, the applicant must show their eligibility and prove that an exercise of discretion in favor of his/her/their application is warranted.[2]

 

Whether discretion is positive or negative depends on how the USCIS balances and weighs the different factors for and against the applicant. The USCIS exercises favorable discretion to the point of approving an application for adjustment of immigration status when positive discretionary factors outweigh the negative factors.[3] Likewise, if negative factors are found to outweigh positive factors, the Department of Homeland Security would more likely exercise discretion to deny the application for adjustment.[4]

 

Nonetheless, the new update to the policy guidance for exercising discretion in evaluating adjustment applications clarifies exactly which discretionary factors are considered.[5] It provides a non-exhaustive list of relevant factors, both positive and negative, that can help determine whether an applicant for adjustment of status warrants a favorable exercise of discretion or not.[6]

 

These factors include an individual applicant’s conduct, an applicant’s character, an applicant’s family or other lawful ties to the U.S., immigration status and history, and other humanitarian concerns, among others.[1] Exactly how these factors weigh against each other is calculated according to a “totality of the circumstances” approach by which existing positive and/or negative factors are weighed to see which are greater and warrant favorable discretion or not.[2]

 

Moreover, the goal behind the new updates to the Policy Manual on the discretionary factors for adjustment is to streamline the discretionary decision-making process. With specific potential factors to consider providing a basis by which to evaluate adjustment status applications, DHS officers can now make more consistent discretionary decisions and provide some set standards or patterns in how they weigh and calculate where their discretion falls.[3]

 

Please fill out the form below or give us a call at +1 (312)-233-1000 if you have any questions about the new changes to the decision-making process for adjudicating adjustment of status applications.

[1] Policy Alert, Use of Discretion for Adjustment of Status, USCIS (Nov. 17, 2020) available at https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20201117-AOSDiscretion.pdf

[2] Id.

[3] News Alert, USCIS Updates Policy Guidance Regarding Discretionary Factors for Adjustment of Status Applications, USCIS (Nov. 17, 2020) available at https://www.uscis.gov/news/alerts/uscis-updates-policy-guidance-regarding-discretionary-factors-for-adjustment-of-status-applications

[1] News Alert, USCIS Updates Policy Guidance Regarding Discretionary Factors for Adjustment of Status Applications, USCIS (Nov. 17, 2020) available at https://www.uscis.gov/news/alerts/uscis-updates-policy-guidance-regarding-discretionary-factors-for-adjustment-of-status-applications

[2] Policy Alert, Use of Discretion for Adjustment of Status, USCIS (Nov. 17, 2020) available at https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20201117-AOSDiscretion.pdf

[3] Id.

[4] Id.

[5] News Alert, USCIS Updates Policy Guidance Regarding Discretionary Factors for Adjustment of Status Applications, USCIS (Nov. 17, 2020) available at https://www.uscis.gov/news/alerts/uscis-updates-policy-guidance-regarding-discretionary-factors-for-adjustment-of-status-applications

 

[6] Id,