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Updated on
October 5, 2020
Article written by
Attorney Kevin O'Flaherty

In this article, we will discuss the potential impact of a recent update to USCIS Policy Manual that allows increased discretionary power for the reviewing officers. We will discuss:


  • How did the policy change?
  • To what forms does the policy apply?
  • What does this mean for those applying for a green card?
  • What issues could arise from this change?
  • What can a green card applicant do to avoid these problems?


How Did The Policy Change?


Policy regarding immigration and naturalization is one more item that can be added to the long list of uncertainties in 2020. Recent updates to the U.S. Citizen and Immigration Services (USCIS) Policy Manual changes the review process for applications for adjustment of status. In the past, when an applicant met all the standard eligibility requirements, adjudicating officers would then review more discretionary items within the application such as criminal history. The new policy changes give a greater weight to the discretionary review portion of the application. Specifically, adjudicating officers must review and confirm that the positive factors of an applicant outweigh the negative factors. This adds a degree of subjectivity to what was before a mostly objective process. The big takeaway is that it will likely increase the amount of time between application and result, and may increase the amount of uncertainty as to why an application was denied versus granted.


To What Forms Does The Policy Apply?


The changes generally apply to family related applications for adjustment of status, as well as the other applications that may come into play when applying for a green card. The changes in review primarily affect applications under Form I-129F (Petition For Alien Fiance), Form I-1485 (Application To Register Residence Or Adjust Status), and Form I-130 (Petition For Alien Relative).


What Does This Mean For Those Applying For A Green Card?


Because the degree of discretion given to officers casts a wide net with ill-defined guidelines, certain factors considered in the review process can be negatively redundant or weighted differently depending on all the other facts surrounding the case. This creates confusion for those applying for a green card as they try to prepare all the pertinent documents and gauge their expectations.


What Issues Could Arise From This Change?


While the reasoning for the change may be well-intentioned (a more thorough and involved review process that potentially weeds out bad apples), there are a number of issues that could arise from an increase in discretionary review as officers must make a decision regarding an applicant’s eligibility based on a culmination of positive and negative factors and their individual interpretation of the guidelines. For example, generally, eligibility is considered a positive factor in the policy manual, but if the adjudication officer believes there are already enough negatives to outweigh the potential positives, the officer can issue a denial before the application is deemed eligible.


The increased discretionary power is likely to delay the application process as an applicant must gather enough evidence displaying his or her positive factors to outweigh the potential negative factors. However, there are no clear guidelines describing how much weight a negative or positive factor will have on the overall application. Interestingly, the officers must still give a detailed explanation for each factor, describing whether it is positive or negative and how it was weighted in the analysis. Again, we can see where this could be beneficial as far as forcing more detailed analysis of applicants, but also could significantly increase the time requirement and potential or subjectivity when reviewing each application.


What Can A Green Card Applicant Do To Avoid These Problems?


As a green card applicant, the most important actions you can take to improve your chances of being approved are carefully preparing all the pertinent evidence supporting your application and seeking out qualified immigration attorneys. If you have any questions about applying for adjustment of status, please give us a call.


Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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