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USCIS Updates Policy Pertaining to Adjustment of Status Adjudications

November 19, 2020 Leave a comment

On November 17, 2020, the U.S. Citizenship and Immigration Services (USCIS) updated its policy guidance regarding discretionary factors to consider when making a decision pertaining to adjustment of status applications. In adjustment cases, the applicants have the burden of demonstrating eligibility, including that a favorable exercise of discretion by USCIS is warranted.

If an applicant otherwise establishes eligibility and USCIS finds the positive discretionary factors in a particular case outweigh the negative factors, the officer should exercise favorable discretion and approve the adjustment application. Conversely, if the negative factors outweigh the positive factors an exercise of discretion to deny is appropriate.

USCIS considers the totality of the circumstances, which may include factors such as an applicant’s conduct, character, family or other lawful ties to the United States, immigration status and history, or any other humanitarian concerns, to determine whether the applicant warrants a favorable exercise of discretion.

The Nov 17 2020 guidance consolidates existing guidance on the privileges, rights, and responsibilities of lawful permanent residents and it the updated guidance provides a list of factors and factual circumstances for adjustment of status that officer consider when undertaking discretionary analysis.  For example, in employment-based adjustment cases – the officers could look at following (the list is not exhaustive):

  • Positive Factor: Employment history, including type, length, and stability of the employment.
  • Positive Factor: Education, specialized skills, and training obtained from an educational institution in the United States relevant to current or prospective employment and earning potential in the United States.
  • Negative Factor: History of unemployment or underemployment
  • Negative Factor: Unauthorized employment in the United States
  • Negative Factor: Employment or income from illegal activity or sources, including, but not limited to, income gained illegally from drug sales, illegal gambling, prostitution, or alien smuggling.

In family-based adjustment cases – the officers could look at following (the list is not exhaustive):

  • Positive Factor: Family ties to the United States and the closeness of the underlying relationships.
  • Positive Factor: Hardship to the applicant or close relatives if the adjustment application is denied.
  • Positive Factor: Length of lawful residence in the United States, status held and conduct during that residence, particularly if the applicant began his or her residency at a young age.
  • Negative Factor: Absence of close family, community, and residence ties
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