What are the Discretionary Factors in Adjustment of Status Applications?

USCIS has updated its existing policy guidance in the USCIS policy manual regarding the discretionary factors that will be considered in adjustment of status applications. As a result, this is a good opportunity to discuss the privileges, rights, and responsibilities of lawful permanent residents and summarize the factors or factual circumstances for adjustment of status that officers consider when conducting a discretionary analysis.

If you are considering applying for a green card in the United States through the adjustment of status process (whether through employment or family), did you know that the the adjudicating officer has discretion on whether or not to approve your case? That is, you may be eligible and admissible yet still have a difficult time obtaining an approved case.

Porter Law Office, LLC specializes in family-based and employment-based adjustment of status cases. We fully understand the discretionary factors in adjustment of status cases and how to use them to obtain positive results. If you have any questions about a green card matter, contact us today to schedule a consultation.

What are the rights, privileges and responsibilities of green card holders?

Green card holders, also known as lawful permanent residents (“LPRs”) have significant rights, privileges and responsibilities under the law. These rights, privileges, and responsibilities are “meant to invoke a commitment to greater assimilation in the United States and offer a pathway to U.S. citizenship.” These privileges, rights, and responsibilities, as set forth in Volume 7, Chapter 1 of the USCIS Policy Manual, include:

  • Living permanently in the United States, provided the LPR does not commit any actions that would make the LPR removable under immigration law;
  • Working in the United States in any legal capacity of the LPR’s qualification and choosing;
  • Being protected by all laws of the United States, including state of residence and local jurisdictions;
  • Obeying all laws of the United States and localities;
  • Filing income tax returns and reporting income to the U.S. Internal Revenue Service and state tax authorities;
  • Supporting the democratic form of government of the United States (remember that LPRs cannot vote in federal elections. LPRs cannot vote in state or local elections unless otherwise permitted by state and local authorities);
  • Registering with the Selective Service, if male and age 18 through 25;
  • Petitioning for a spouse, unmarried children, and unmarried son(s) or daughter(s) to receive permanent residence; and
  • Applying for U.S. citizenship once eligible.

See also USCIS’s rights and responsibilities of a green card holder page. A U.S. citizen has a full bundle of rights, including being able to vote in federal, state, and local elections. LPRs do not have this right, but they do have many of the same bundle of rights conferred to U.S. citizens. This is why USCIS has an interest in granting approvals to only those applicants who warrant a positive grant of discretion in adjustment of status cases.

What is discretion in adjustment of status cases?

Given the significant privileges, rights, and responsibilities granted to LPRs, the adjudicating officer with USCIS must consider and weigh all relevant evidence in the record, taking into account the totality of the circumstances to determine whether or not an approval of an applicant’s adjustment of status application is in the best interest of the United States. See Matter of Buscemi, 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards, 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Moralez, 21 I&N Dec. 296, 300 (BIA 1996).

If there is no evidence that the applicant has negative factors present in his or her case, or if the officer finds that the applicant’s positive factors outweigh the negative factors such that the applicant’s adjustment is warranted and in the interest of the United States, the officer generally may exercise favorable discretion and approve the application. If the officer finds that the applicant’s negative factors outweigh the positive factors, such that a favorable exercise of discretion is not warranted in the applicant’s case, the officer must deny the application. See Matter of Arai, 13 I&N Dec. 494 (BIA 1970). See Matter of Lam, 16 I&N Dec. 432 (BIA 1978).

Below is a chart of the positive and negative discretionary factors that USCIS uses to adjudicate adjustment of status cases. This chart is reprinted from Policy Manual in Volume 7: General Policies and Procedures, Part A, Adjudications, Chapter 10, Legal Analysis and Use of Discretion. See 7 USCISPM A.10.

Issue Positive Factors Negative Factors
Eligibility Requirements Meeting the eligibility requirements for adjustment of status. Not meeting the eligibility requirements may still be considered as part of a discretionary analysis.
Family and Community Ties Family ties to the United States and the closeness of the underlying relationships.

Hardship to the applicant or close relatives if the adjustment application is denied.

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.

Absence of close family, community, and residence ties.
Immigration Status and History Compliance with immigration laws and the conditions of any immigration status held.

Approved humanitarian-based immigrant or nonimmigrant petition, waiver of inadmissibility, or other form of relief and the underlying humanitarian, hardship, or other factors that resulted in the approval.

Violations of immigration laws and the conditions of any immigration status held.

Current or previous instances of fraud or false testimony in dealings with USCIS or any government agency.

Unexecuted exclusion, deportation, or removal orders.

Business, Employment, and Skills Property, investment, or business ties in the United States.

Employment history, including type, length, and stability of the employment.

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.

History of unemployment or underemployment.

Unauthorized employment in the United States.

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.

Community Standing and Moral Character Respect for law and order, and good moral character (in the United States and abroad) demonstrated by a lack of a criminal record and evidence of good standing in the community.

Honorable service in the U.S. armed forces or other evidence of value and service to the community.

Compliance with tax laws.

Current or past cooperation with law enforcement authorities.

Demonstration of reformed or rehabilitated criminal conduct, where applicable.

Community service beyond any imposed by the courts.

Moral depravity or criminal tendencies (in the United States and abroad) reflected by a single serious crime or an active or long criminal record, including the nature, seriousness, and recent occurrence of criminal violations.

Lack of reformation of character or rehabilitation.

Public safety or national security concerns.

Failure to meet tax obligations.

Failure to pay child support.

Failure to comply with any applicable civil court orders.

Other Absence of significant undesirable or negative factors and other indicators of good moral character in the United States and abroad. Other indicators adversely reflecting the applicant’s character and undesirability as an LPR of this country.

Before making a final decision on an adjustment of status case, the officer may ask the applicant directly why he or she warrants a favorable exercise of discretion. The officer documents the response, or lack thereof, in the record then makes a decision. To have the greatest chance of approval, your lawyer should analyze these discretionary factors before filing your case. That way, if USCIS has any questions, you will be ready to address them at your interview.

Immigration Lawyer in Columbus, Ohio

Obtaining Green Cards through Adjustment of Status

The experienced immigration lawyer at Porter Law Office, LLC is dedicated to assisting individuals and businesses navigate the complex adjustment of status process. Porter Law Office, LLC is conveniently located outside of Columbus, Ohio in the suburb of Gahanna. If you need help with the adjustment of status process, or any other immigration issue, contact Columbus, Ohio immigration lawyer Matthew R. Porter today to discuss your options.

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