USCIS Updates Policy Pertaining to Adjustment of Status Adjudications

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

August 2020 Employment-Based Visa Numbers – Eligibility to File Adjustment of Status Applications

Employment- based	All Countries  Except Those Listed in the Table	CHINA- mainland born	El-Salvador Guatemala Honduras	India	Mexico	Philippines	Vietnam
1st	C	08FEB18	C	08FEB18	C	C	C
2nd	C	15JAN16	C	08JUL09	C	C	C
3rd	01APR19	15FEB17	01APR19	01OCT09	01APR19	01APR19	01APR19
Other Workers	01APR19	01AUG08	01APR19	01OCT09	01APR19	01APR19	01APR19
4th	C	C	01APR17	C	15JUN18	C	C
Certain Religious Workers	C	C	01APR17	C	15JUN18	C	C
5th Non-Regional Center (C5 and T5)	C	08AUG15	C	C	C	C	22JUL17
5th Regional  Center (I5 and R5)	C	08AUG15	C	C	C	C	22JUL17

July 2020 Employment-Based Visa Numbers – Eligibility to File Adjustment of Status Applications

Employment- Based	All Countries Areas Except Those Listed	CHINA- mainland Born	El-Salvador Guatemala Honduras	India	Mexico	Philippines	Vietnam
1st	C	22AUG17	C	08MAY17	C	C	C
2nd	C	08NOV15	C	08JUL09	C	C	C
3rd	15APR18	22JUN16	15APR18	01JUN09	15APR18	15APR18	15APR18
Other Workers	15APR18	22JUL08	15APR18	01JUN09	15APR18	15APR18	15APR18
4th	C	C	01FEB17	C	15JUN18	C	C
Certain Religious Workers	C	C	01FEB17	C	15JUN18	C	C
5th Non-Regional Center (C5 and T5)	C	22JUL15	C	C	C	C	15MAY17
5th Regional Center (I5 and R5)	C	22JUL15	C	C	C	C	15MAY17

October 2019 Visa Bulletin – Employment-Based Visa Numbers – Eligibility to File Adjustment of Status Applications

For Employment-Based Preference Filings:
You must use the Dates for Filing chart in the Department of State Visa Bulletin for October 2019.

Employment- based	All Chargeability Areas Except Those Listed	CHINA- mainland born	EL SALVADOR GUATEMALA HONDURAS	INDIA	MEXICO	PHILIPPINES
1st	01JUL19	01SEP17	01JUL19	15MAR17	01JUL19	01JUL19
2nd	C	01AUG16	C	01JUL09	C	C
3rd	C	01MAR17	C	01FEB10	C	C
Other Workers	C	01AUG08	C	01FEB10	C	C
4th	C	C	15AUG16	C	C	C
Certain Religious Workers	C	C	15AUG16	C	C	C
5th Non-Regional Center (C5 and T5)	C	01JAN15	C	C	C	C
5th Regional Center (I5 and R5)	C	01JAN15	C	C	C	C

August 2019 Visa Bulletin – Employment-Based Visa Numbers – Eligibility to File Adjustment of Status Applications

For Employment-Based Preference Filings:
You must use the Final Action Dates chart in the Department of State Visa Bulletin for August 2019.

Employment- Based	All Chargeability Areas Except Those Listed	CHINA- mainland born	El Salvador Guatemala Honduras	INDIA	MEXICO	PHILIP PINES	VIETNAM
1st	01JUL16	01JUL16	01JUL16	01JAN15	01JUL16	01JUL16	01JUL16
2nd	01JAN17	01JAN17	01JAN17	02MAY09	01JAN17	01JAN17	01JAN17
3rd	01JUL16	01JUL16	01JUL16	01JAN06	01JUL16	01JUL16	01JUL16
Other Workers	01JUL16	22NOV07	01JUL16	01JAN06	01JUL16	01JUL16	01JUL16
4th	C	C	01JUL16	C	01JUL16	C	C
Certain Religious Workers	C	C	01JUL16	C	01JUL16	C	C
5th Non-Regional Center (C5 and T5)	C	15OCT14	C	15OCT14	C	C	15OCT14

February 2019 Visa Bulletin – Employment-Based Visa Numbers – Eligibility to File Adjustment of Status Applications

For Employment-Based Preference Filings:
You must use the Final Action Dates chart in the Department of State Visa Bulletin for February 2019.

Employment- Based	All Chargeability Areas Except Those Listed	CHINA- mainland born	El SALVADOR GUATEMALA HONDURAS	INDIA	MEXICO	PHILIPPINES	VIETNAM
1st	01DEC17	08FEB17	01DEC17	08FEB17	01DEC17	01DEC17	01DEC17
2nd	C	01OCT15	C	06APR09	C	C	C
3rd	C	01JUL15	C	22APR09	C	01AUG17	C
Other Workers	C	01AUG07	C	22APR09	C	01AUG17	C
4th	C	C	01MAR16	C	01SEP17	C	C
Certain Religious Workers	U	U	U	U	U	U	U
5th Non-Regional Center (C5 and T5)	C	01SEP14	C	C	C	C	15JUN16
5th Regional Center (I5 and R5)	U	U	U	U	U	U	U

December 2018 Visa Bulletin – Employment-Based Visa Numbers – Eligibility to File Adjustment of Status Applications

Employment- Based	All Chargeability Areas Except Those Listed	CHINA- mainland born	El SALVADOR GUATEMALA HONDURAS	INDIA	MEXICO	PHILIPPINES
1st	01JUN18	01OCT17	01JUN18	01OCT17	01JUN18	01JUN18
2nd	C	08SEP15	C	22MAY09	C	C
3rd	C	01DEC15	C	01JAN10	C	01AUG17
Other Workers	C	01JUN08	C	01JAN10	C	01AUG17
4th	C	C	01MAY16	C	C	C
Certain Religious Workers	C	C	01MAY16	C	C	C
5th Non-Regional Center (C5 and T5)	C	01OCT14	C	C	C	C
5th Regional Center (I5 and R5)	C	01OCT14	C	C	C	C

November 2018 Visa Bulletin – Employment-Based Visa Numbers – Eligibility to File Adjustment of Status Applications

Employment- Based	All Chargeability Areas Except Those Listed	CHINA- mainland born	El SALVADOR GUATEMALA HONDURAS	INDIA	MEXICO	PHILIPPINES
1st	01JUN18	01OCT17	01JUN18	01OCT17	01JUN18	01JUN18
2nd	C	15JUN15	C	22MAY09	C	C
3rd	C	08AUG15	C	01OCT09	C	01JUL17
Other Workers	C	01JUN08	C	01OCT09	C	01JUL17
4th	C	C	01MAY16	C	C	C
Certain Religious Workers	C	C	01MAY16	C	C	C
5th Non-Regional Center (C5 and T5)	C	01OCT14	C	C	C	C
5th Regional Center (I5 and R5)	C	01OCT14	C	C	C	C