USCIS ADDS TO THE LIST OF FACTORS THAT MAY BE RELEVANT IN CONSIDERING WHETHER ADJUSTING AN APPLICANT’S STATUS WARRANTS A FAVORABLE EXERCISE OF DISCRETION OR NOT

On November 17, 2020, the United States Citizenship and Immigration Services (USCIS) updated their guidelines in their Policy Manual regarding what type of discretion the Department of Homeland Security (DHS) should use in adjudicating status application adjustments.[1] Typically, in order to get approval for adjustment of his/her/their immigration status, the applicant must show their eligibility and prove that an exercise of discretion in favor of his/her/their application is warranted.[2] Whether discretion is positive or negative depends on how the USCIS balances and weighs the different factors for and against the applicant. The USCIS exercises favorable discretion to the point of approving an application for adjustment of immigration status when positive discretionary factors outweigh the negative factors.[3] Likewise, if negative factors are found to outweigh positive factors, the Department of Homeland Security would more likely exercise discretion to deny the application for adjustment.[4]

The new update to the policy guidance for exercising discretion in evaluating adjustment applications clarifies exactly which discretionary factors are considered.[5] It provides a…