What Is USCIS Discretion and How Does It Affect Your Immigration Case?
Two people can appear to qualify for the same immigration benefit, submit the required forms, and still face very different decisions from U.S. Citizenship and Immigration Services (USCIS).
One reason is discretion.
For certain immigration benefits, proving that you satisfy the basic eligibility requirements does not automatically require USCIS to approve the case. The law also gives USCIS authority to decide whether the applicant warrants a favorable exercise of discretion based on the individual circumstances.
Understanding that distinction can change how an immigration case should be prepared.
Eligibility and Discretion Are Two Different Questions
First, USCIS determines whether an applicant satisfies the legal requirements for the immigration benefit being requested.
For a benefit involving discretion, there can then be another question: Even though the person is eligible, should USCIS grant the benefit?
Most family-based and employment-based adjustment of status applications, for example, involve discretionary review. Certain waivers, employment authorization requests, changes or extensions of status, and other immigration benefits can involve discretion as well.
Not every immigration benefit is discretionary, however. Whether USCIS has discretionary authority depends on the particular benefit and applicable immigration law.
What Does USCIS Consider?
There is no universal checklist that determines whether USCIS will exercise discretion favorably.
Instead, officers may be required to consider the totality of the circumstances, weighing relevant positive factors against negative ones. Depending on the benefit, considerations may include family and community ties, immigration history, lawful residence, hardship, employment, conduct, and other circumstances relevant to the individual case.
That means one unfavorable fact does not necessarily determine the outcome. Likewise, simply having several positive factors does not guarantee approval.
The importance of each factor depends on the facts and the immigration benefit being requested.
A Past Problem May Still Matter Even If It Does Not Make You Ineligible
This is where discretion can surprise applicants.
Suppose something in your immigration or personal history does not create a statutory bar to the benefit you are seeking. You might reasonably assume the issue no longer matters.
USCIS may still be permitted to consider it during the discretionary analysis.
For example, in an adjustment of status case, an immigration violation may potentially be considered negatively even when that violation does not itself prevent adjustment.
The same basic distinction can arise in other discretionary contexts: “This does not make me legally ineligible” is not always the end of the analysis.
Discretion Does Not Mean an Officer Can Decide Whatever They Want
The word “discretion” can make the process sound arbitrary. It is not supposed to be.
USCIS officers are expected to examine the record, assign appropriate weight to relevant factors, and evaluate those factors together based on the individual circumstances.
But there is also no mathematical formula.
A case does not receive five points for strong family ties and lose three points for an immigration violation. As negative factors become more serious, stronger positive factors may be necessary to demonstrate why a favorable exercise of discretion is appropriate.
This individualized balancing is one reason seemingly similar immigration cases can have different outcomes.
Why Discretion Changes the Way a Case Should Be Prepared
When discretion is part of the adjudication, completing the forms and proving technical eligibility may not be enough.
Applicants may need to think strategically about the entire evidentiary record. What negative factors could USCIS identify? What circumstances provide important context? What positive evidence is relevant? Does the application demonstrate why favorable discretion is warranted rather than leaving USCIS to piece that picture together?
This is one reason immigration cases that appear straightforward on paper can require careful legal analysis before filing.
Know What USCIS Will Be Deciding Before You Apply
The first question in an immigration case should not always be simply, “Am I eligible?” When the requested benefit is discretionary, applicants also need to understand what USCIS may consider after eligibility has been established.
Our New York immigration attorneys at Sharma Law Associates evaluate both sides of that equation. We help clients determine the legal requirements for the benefit they are seeking, identify facts that may affect discretionary review, and prepare evidence and arguments that address the complete case.
If you are unsure whether USCIS discretion applies to your immigration request, call Sharma Law Associates at 646-921-6630, contact us online, or schedule a consultation. Knowing what USCIS has the authority to consider can help you prepare for the decision it will actually be making.
