Applying Discretion in USCIS Adjudications
USCIS issued a Policy Alert on July 15, 2020 regarding Officer’s use of discretion in adjudicating petitions and applications. This policy alert comes after President Trump’s June 22, 2020 Proclamation addressing the Department of Homeland Security’s administration of employment authorizations. In response, USCIS has consolidated the existing guidelines of the policy into their Policy Manual.
What does this discretion entail?
Officers first review petitions and applications to make sure the applicant has met the eligibility requirements for the benefit sought. The discretionary analysis (meaning the officer has the power to make a choice by weighing positive and negative factors to reach a decision) is a separate step that occurs after the Officer has determined that the requestor meets all other eligibility requirements. Discretionary Factors can be viewed in Chapter 5-Discretion.
This discretion is the final step and the burden of proof is on the requestor to prove they have the qualifying merits to receive a favorable decision from the USCIS officer. This discretion policy is a factor in many family- and employment-based cases, including certain applications for green cards and employment authorization documents.
Policy Alert Highlights
The USCIS policy alert provides an overview and the general goals of the discretionary analysis, including the appropriate scope of discretion and a non-exhaustive list of discretionary factors that officers should consider on a case-by-case basis. It also explains how officers should generally weigh factors in a case and properly document the discretionary determination and confirms that the ultimate decision to exercise discretion depends on the facts and circumstances of each individual case.
If you need assistance with filing a petition or application with USCIS, please contact our office to schedule a consultation.