USCIS consolidates discretionary analysis policy — how it applies to EB-5

  • Written by GCBI Team Posted on July 23, 2020 | Updated on July 23, 2020 | 3 min read

U.S. Citizenship and Immigration Services has updated its Policy Manual regarding the use of discretion in adjudication. Discretionary analysis may be applied to EB-5 petitions. Such analysis is a separate element of adjudication, usually happening at the end of a review. A petitioner must first demonstrate program eligibility before being able to be awarded discretionary benefits.

USCIS, in its updated policy manual, explains what discretionary analysis is and how it applies to some immigration benefits. EB-5 is a category where discretion may be involved.

What is discretion?

It is defined as the ability to exercise sound judgment when making a decision. Doing so gives the adjudicating officer a degree of autonomy. The Board of Immigration Appeals (BIA) further defines discretion as the balancing of an applicant’s negative factors with social and humane factors to determine if a positive judgement is in the “best interests of this country.” The BIA also says that negative factors needs to be balanced by “unusual or even outstanding equities.”

When is discretion applied?

The use of discretion is usually made after the applicant has proven he or she meets all eligibility requirements for the program. This is critical — an applicant must meet all requirements before being awarded discretionary benefits:

  • Is the applicant eligible to receive a visa?
  • Is he or she admissible to the US as a permanent resident?
  • Is a visa immediately available?

The agency points out that an adjudicating officer exercising discretion should be guided by regulations, policy and case law. The use of discretion also has limitations: an officer may not apply discretion “arbitrarily, inconsistently, or in reliance on biases or assumptions.”

Congress has explicitly granted the power of discretion to the Secretary of Homeland Security, and this power, in turn, is delegated through the Department of Homeland Security (DHS) and USCIS to its adducting officers.

The 3 steps to adjudication with discretionary analysis

USCIS policy outlines the three steps involved when discretion is involved in adjudication: 

  1. Fact-finding
  2. Determining applicant eligibility
  3. Discretionary analysis

The first step, fact-finding, is the collection and review of “credible” evidence with regards to an applicant’s eligibility. This may be done during an interview. The information gathered may include but is not limited to immigration history, criminal history, and public safety or national security concerns. If negative factors exist, the officer may ask the applicant why favourable discretion should be granted.

The discretionary analysis step entails the “weighing of positive and negative factors and considering the totality of the circumstances in the specific case.”

Discretionary factors that may be considered

After determining eligibility, some factors that an adjudicating officer may consider may include (but are not limited to) the following:

  • Hardship that may result from a negative judgement
  • The applicant’s value to the community
  • Service in the U.S. military
  • Employment history
  • U.S. business and property ties
  • Taxation history
  • Likelihood of lawful permanent residency starting soon
  • Proof of respect for law and order as well as good character
  • Criminal history
  • History of fraud of false testimony with either USCIS or any U.S. government agency

The balancing of negative and positive factors

The USCIS policy manual states that as negative factors become more significant, a favourable discretionary judgement may not be possible without “unusual or outstanding equities in the case.” 

The agency says there is no formula for assigning weight to any specific factor, either positive or negative. But some factors, it says, may be more significant than others. It also advises that an adjudicating officer should not assign a numeric value to any factor. The factors must be evaluated separately, then as a whole. USCIS states that a smaller number of positive factors may be more significant than a larger number of negative factors  — and the converse may also be true.

Negative judgements

A case that results in a denial based on discretionary judgment requires the officer to detail both the positive and negative factors and explain why the negative factors outweigh the positive ones. USCIS advises that negative factors should never be evaluated in a general way but only on an individual case-by-case basis. 

When an officer denies an applicant because of discretionary analysis, he or she must give a written notice to the applicant that says the denial was a matter of discretion, and identify both the positive and negative factors, and explain the weight given to each factor individually, and the cumulative weight given to all factors.

Complex cases should include a supervisor

The policy manual also says that in the event of a complex or difficult case, an officer should consult with their supervisor; this mandate especially applies to cases where criminality or national security concerns are evidenced. The supervisor, in turn, may consult with USCIS legal counsel.

See the USCIS Policy Alert

See USCIS Policy Manual Chapter 8: Discretionary Analysis