With a new Administration in Washington, there has been some buzz surrounding the use of discretion for immigration case processing. Simply put, what is discretion when it is used in an immigration context? How does it work and what makes it different when being applied in family and employment-based visa contexts? And why is it so important when adjudicating cases? This brief is meant to unpack some of the legal issues around discretion and where the USCIS comes in as the institutional body that decides on who is admitted to the United States.
USCIS Policy Manual
Any immigration applicant can find more information about what discretion is and what it means in the USCIS policy manual. For the purposes of this posting, we will define discretion per the manual, Chapter 8:
“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 important part of any immigration case, much like the judge presiding over a court case, is that the ruling is just and fair, based on all of the available evidence. One of the main criticisms of the Trump Administration, and by extension the handling of immigration cases during his term, was that discretionary analysis (the act of weighing both positive and negative factors) was biased in favor of rejecting more cases, and thus immigration as an institution became one seeking out ways to reject more cases as opposed to a case by case basis that used true discretion as described above.
Some of the factors for both employment-based and family-based green card applications that applicants should know is used in a discretionary analysis include the following:
- Service in the U.S. Armed Forces
- History of taxes paid
- Property of business ties to the United States
- Community service beyond any imposed by a court order
- Evidence regarding respect for law and order, good character, and intent to hold family responsibilities
- Criminal record or history
- Hardships due to an adverse decision
- Beneficiary ties to family members in the United States
- National security concern
Discretion has been a longtime part of the immigration process that has been meant to excuse minor infractions. For example, if an employment-based green card applicant has unpaid parking tickets or a minor traffic violation, but otherwise has a good job available in the US with a renewable energy company that will benefit the US economy and is otherwise admissible, then discretion should be used to side with such an applicant (based on analysis).
As such, the use of discretion is important not just for justiciable decision making, but also for efficiency purposes. For example, applicants should be aware of the following when filling out USCIS forms:
- If they need to include Supplementary documents as attachments to their applications (i.e. Supplement J, I-485 application)
- If applicants are supposed to submit an e-signature vs. a handwritten one
- How to fill out a paper check (newer applicants only familiar with fin-tech such as Venmo have never used checks before)
- Submitting the most recent version of a form
All of these small, but significant errors in applications can cost applicants jobs, or simply months of wait times as the USCIS files an RFE or rejects an application outright.