“Discretion” in the Evaluation of Adjustment of Status Applications

By: Sara Cross

On November 17, 2020, U.S. Citizenship and Immigration Services (USCIS) updated the agency’s existing policy guidance regarding the discretionary factors an adjudicating officer is entitled to consider when evaluating adjustment of status applications. The Policy Alert states that this updated guidance is effective immediately, although the agency will accept comments through December 17, 2020.

The adjustment of status applicant has the burden in demonstrating they are eligible for lawful permanent residency, as well as the fact that they warrant favorable discretion. When evaluating whether an applicant warrants such a favorable exercise of discretion, USCIS utilizes the totality of the circumstances approach.

Factors that may be considered include, but are not limited to, the following:

-Conduct and character of the applicant,

-Family or other lawful ties to the U.S.,

-Immigration status and history, and

-Humanitarian issues or concerns.

This policy update makes clear that when positive factors outweigh negative factors, favorable discretion is warranted and the adjustment of status application should be approved.