Nov. 17, 2020

USCIS Flexes Muscle with New “Discretion” Criteria for Green Card Applications

In yet another update to its Policy Manual, U.S. Citizenship and Immigration Services today announced that it is updating existing policy guidance regarding the exercise of discretion in adjudications of adjustment of status applications. Importantly, the new provisions apply to all family-based, employment-based and diversity visa adjustment of status applications. In a separate “Policy Alert,” USCIS states that the new guidance is effective immediately. We believe USCIS is likely to apply the new policy to pending adjustment of status applications.

While adjustment of status (the process for stateside green card applications) has always been a discretionary benefit for most applicants, the formalized – but not exhaustive – issues and factors that must now be considered include:

  • Presence or absence of close family, community and residence ties to the U.S.A.
  • Hardship to the applicant or close relatives if the application is denied
  • Length of lawful residence in the U.S.A, status held and conduct during that residence
  • Compliance with or violations of U.S. immigration laws
  • History of employment or unemployment, whether U.S. employment was authorized, type, length and stability of employment, and earning potential
  • Respect for law and order and “evidence of good standing in the community”
  • Compliance with tax laws, or failure to meet tax obligations
  • Other factors “adversely reflecting the applicant’s character and undesirability as a lawful permanent resident of” the U.S.A.


The updated Policy Manual guidance notes that the standard of proof for adjustment of status is generally a preponderance of the evidence (that is, a claimed fact is more likely true than not true). It points out, however, that if the adjudicating officer determines an applicant may be inadmissible, she must demonstrate clearly and beyond a doubt that she is entitled to be admitted and is not inadmissible.

For those interested in reading the Policy Manual update in its entirety, it is online at https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-10.

If you need assistance with an adjustment of status application or other immigration matter, feel free to contact our experienced immigration team by calling us at 518-487-7600, or email us at immigration@woh.com.