U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual regarding the factors that officers may consider in certain benefit requests where an exercise of discretion is required, including factors relating to aliens’ past requests for parole and any involvement in anti-American or terrorist organizations.
Background
- Many immigration benefits require an alien to demonstrate that a favorable exercise of discretion is warranted, after meeting initial eligibility requirements.
- Discretionary analysis involves weighing positive and negative factors in the case and considering the totality of the circumstances.
Key changes and clarifications
- Affirms that USCIS considers factors involving circumstances where an alien has endorsed, promoted, supported, or otherwise espoused the views of an anti-American or terrorist organization or group, including those who support or promote antisemitic terrorism, antisemitic terrorist organizations, and antisemitic ideologies, to be an overwhelmingly negative factor in USCIS discretionary analyses.
- Clarifies that when conducting a discretionary analysis, officers consider whether an alien’s application for admission or parole was made in accordance with all applicable laws, regulations, and policies in effect at the time.
- Explains that an exercise of discretion in the adjudication of an employment-based immigrant petition is limited to cases where the alien is seeking a national interest waiver.
- Clarifies how an exercise of discretion is applied in the adjudication of an EB-5 investor petition or application in cases involving threats to the national interest, fraud, deceit, misrepresentation, and criminal misuse.
- Clarifies that USCIS exercises discretion when adjudicating requests for extension of stay, change of status, reinstatement of F or M nonimmigrant status, and in certain employment authorization requests filed under 8 CFR 274a.12(C).
Effective Date
The guidance is effective immediately and applies to requests pending or filed on or after August 19, 2025. This guidance supersedes any previous related guidance in the Policy Manual.
Link to policy alert: 20250819-DiscretionaryFactors.pdf