New York Lawyer's Legal Updates

USCIS And Discretion: What Factors Will Have Your Waiver Approved?

Author: NYC Immigration lawyer Alena Shautsova

New York Immigration lawyers at the law office of Alena Shautsova P.C. help clients to convince the US government to exercise positive discretion and grant applications for relief.

Discretion... discretion is the core of the government’s ability to control one’s application for relief, be it a waiver, adjustment of status, prosecutorial discretion, and even employment authorization. Discretion is the government’s desire or lack of thereof to grant one’s application for relief. Numerous applications for relief call for discretion: that is first, a person has to meet a rigid set of requirements, and only once those are met, the government will evaluate the case as a whole and decide of a positive discretion is warranted. As you can imagine, discretion is flexible. The way it is exercised determines the outcome of one’s Immigration applications and future in the US.

Here is a lengthy list of various types of applications involving discretion:

Immigration Benefits Involving Discretionary Review
Benefit TypeDiscretion Involved (Yes or No)
Petition to classify an alien as a nonimmigrant workerNo (with some exceptions)
Petition to classify an alien as a fiancé(e) of a U.S. citizenYes
Application to extend or change nonimmigrant statusYes
Advance permission to enter as a nonimmigrantYes
Humanitarian paroleYes
Temporary protected statusYes
Refugee statusYes (with some exceptions)
Petition to classify an alien as a family-based immigrant[17]No (with some exceptions)
Petition to classify an alien as an employment-based immigrant[18]Yes
Petition to classify an alien as an immigrant investorYes
Adjustment of statusYes (with some exceptions)
Recognition as an American Indian born in CanadaNo
Waivers of inadmissibilityYes
Consent to reapply for admission after deportation or removal]Yes
Employment authorizationYes (with some exceptions)
Removal of conditions on permanent residence[27]No (with some exceptions)[28]
Application for a Certificate of CitizenshipNo

Recently, USCIS published updates to its policy regarding discretion. One has to pay close attention to these updates: they are the true determinatives of if one’s application can be successful. Specifically, the positive factors and US interest in having the immigrant will be evaluated against negative factors. “These characterizations imply that the exercise of discretion cannot be arbitrary, inconsistent, or dependent on intangible or imagined circumstances.” The rule of thumb is that where negative factors are absent, USCIS usually exercises positive discretion. This is especially important for applications for adjustment of status. Imagine such a situation: a person does not have any criminal bars to adjust his/her status, but has numerous citations. USCIS may deny a person’s application for adjustment of status refusing to exercise positive discretion.

Which factors can be considered when USCIS is evaluating one’s application?

  • The applicant’s ties to family members in the United States and the closeness of the underlying relationships: does the applicant have close,
  • immediate relatives, such as children, parents, spouses, or only remote relatives?
  • Hardship due to an adverse decision: it is very important to present the factors relates to hardships: medical, financial, psychological, etc.
  • The applicant or beneficiary’s value and service to the community: here, an applicant shall produce evidence of volunteering, servicing the community.
  • Length of the applicant or beneficiary’s lawful residence in the United States and status held during that residence, including the age at which the alien began residing in the United States;
  • Service in the U.S. armed forces, if any.
  • History of employment: does an applicant have a stable employment history?
  • Property or business ties in the United States: ownership of homes (including the ones with a mortgage)
  • History of taxes paid: Tax transcripts shall be produced.
  • Nature and underlying circumstances of any inadmissibility grounds at issue, the seriousness of the violations, and whether the applicant or beneficiary is eligible for a waiver of inadmissibility or another form of relief;
  • Likelihood that lawful permanent resident (LPR) status will ensue soon;
  • Evidence regarding respect for law and order, good character, and intent to hold family responsibilities (for example, affidavits from family, friends, and responsible community representatives): letters of support are extremely important here.
  • Criminal history (in the United States and abroad) and whether the applicant or beneficiary has rehabilitated and reformed;
  • Community service beyond any imposed by the courts;
  • Whether the alien is under an unexecuted administratively final removal, deportation, or exclusion order;
  • Public safety or national security concerns;
  • Moral depravity or criminal tendencies reflected by a single serious crime or an ongoing or continuing criminal record, with attention to the nature, scope, seriousness, and recent occurrence of criminal activity.
  • Findings of juvenile delinquency;
  • Compliance with immigration laws;
  • Previous instances of fraud or false testimony in dealings with USCIS or any government agency;
  • Marriage to a U.S. citizen or LPR for the primary purpose of circumventing immigration laws;
  • Other indicators of an applicant or beneficiary’s character.

The above mentioned factors are taken directly from the USCIS policy description of the discretion. As one can see, the factors include the juvenile delinquency!

In making its determination USCIS will weigh positive and negative factors. Note, the burden of establishing eligibility to relief thought lies on the applicant. It means it is up the person to present positive factors, if the person would like USCIS to take them into consideration.

If you need consultation regarding various Immigration benefits, contact our NYC Immigration lawyer at 917-885-2261 or reserve your appointment here.

17 July 2020
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