A USCIS adjudicator's decision to approve or deny many immigration benefit types is discretionary, which means that in addition to establishing threshold eligibility under regular requirements for the benefit, an applicant also has to demonstrate "that the request merits a favorable exercise of discretion in order to receive the benefit."
In a July 15, 2020 Policy Alert, USCIS announced that it has consolidated into the USCIS Policy Manual its guidance on how adjudicators should use discretion in making their benefit determinations. The consolidated guidance supersedes other guidance on the topic. The Policy Alert states:
"This guidance, contained in Volumes 1 and 10 of the Policy Manual, incorporates and replaces Chapter 10.15 of the Adjudicator’s Field Manual (AFM), as well as the AFM’s related appendices, and related policy memoranda. The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance on the topic."
- 1 USCIS-PM E.8. - Discretionary Analysis describes the general discretionary analysis and process that USCIS adjudicators are instructed to use in all discretionary decisions.
- 10 USCIS-PM A.5 - Discretion states that the decision to grant "Category C" employment authorization is discretionary. This covers all applicants described under 8 CFR 274a.12(c), which includes, among others: applications for EAD-based F-1 employment authorization such as pre- and post-completion optional practical training, economic necessity or international organization work authorization; J-2 work authorization; adjustment of status-based work authorization; TPS work authorization; and H-4 work authorization.
The requestor must establish that his or her request merits favorable discretion. Common benefit applications frequently used in higher education that require an exercise of favorable exercise of discretion include:
- Application to extend or change nonimmigrant status (I-539 or I-129), or request reinstatement to F-1 or M-1 student status (I-539)
- Many applications for employment authorization (I-765)
- Petition for an employment-based immigrant (I-140)
- Application for adjustment of status (I-485)
This is only a brief list. Other benefit requests also involve the favorable exercise of discretion.
The USCIS Policy Manual entry explains generally that:
"In general, an officer may exercise favorable adjudicative discretion to approve a benefit request when the requestor has met the applicable eligibility requirements and negative factors impacting discretion are not present. An exercise of discretion to grant a benefit may also be appropriate when the requestor has met the eligibility requirements for the benefit, and the positive factors outweigh the negative factors. An exercise of discretion to deny, rather than to grant, may likewise be appropriate when the requestor has met the requirements of the request, but negative factors found in the course of the adjudication outweigh the positive factors."
USCIS states that this exercise of adjudicative discretion requires a "totality of the circumstances" approach:
"The act of exercising discretion involves the weighing of positive and negative factors and considering the totality of the circumstances in the specific case. In the immigration context, the goal is to assess whether, based on the totality of the circumstances, the alien warrants a favorable exercise of discretion."
The guidance gives examples of "factors or factual circumstances that are generally considered when conducting a discretionary analysis," but notes that "the officer may consider any relevant fact in the discretionary analysis."
However, the guidance treats a person's meeting the "threshold eligibility" for the benefit itself as a positive factor.
"Therefore, absent any negative factors, USCIS ordinarily exercises discretion positively. Generally, if there are no negative factors to weigh against that positive factor, denial of the benefit would be an inappropriate use of discretion."
A benefits adjudication would involve a simple analysis when the applicant demonstrates eligibility and there are no negative factors present. Adjudicators are instructed that:
"If no negative factors are present, the officer may provide a simple statement in the file noting the absence of negative factors (for example, comments indicating that the alien is eligible, that there are no negative factors, and that therefore USCIS grants the benefit in the exercise of discretion)."
On the other hand, "If negative factors outweigh the positive factors and USCIS denies the benefit request, the written decision must contain an analysis of the factors considered in exercising discretion, where possible."