By Polina Dashevsky, Summer Intern

The U.S. Citizenship and Immigration Services (USCIS) added two new chapters  to their policy manual on July 15 2020:  (1) Volume 1, Chapter 8 on the concept of “Discretionary Analysis,” as a general policy and procedure and (2) Volume 10, Chapter 5 on the application of discretion in employment authorization decisions.[1][2]   The ostensible purpose is to consolidate and clarify the existing policy guidance on the use and application of discretion.  This blog focuses on the Discretionary Analysis general procedure chapter.

What Is Discretionary Analysis?

Discretionary analysis is an administrative process that allows benefit requestors to present their eligibility and balance out any negative factors, such as a criminal record, that may hinder their application for employment authorization or any other immigration benefit.  Discretionary analysis enables adjudicating officers to consider any positive factors that prove the benefit requestor’s good character, which can be evidenced through contribution to the community, like community service, career building, and healthy family relations.  The policy manual contains a summary chart to see where discretion is a factor in an adjudication.  While certain immigration benefits, such as Naturalization or Application for a Certificate of Citizenship, would most likely not require discretion, most other benefits listed involve discretionary review.

Discretionary Analysis as a Separate Component of Adjudication

Although discretion was not explicitly defined in the Immigration and Nationality Act of 1952, the new guidance makes discretionary analysis an affirmative, separate component of adjudication for many benefit requests.  After the applicant proves all other elements of a benefit application, they still have to get over a discretionary analysis by the adjudicator.  The basic adjudication steps involving discretionary analysis under the new guidance are: (1) fact-finding, (2) determining whether the requestor meets the threshold eligibility requirements, and (3) conducting discretionary analysis.[3]  The revisions to the USCIS policy manual provide an overview of factors officers should consider, and how certain factors and circumstances should be weighed in the discretionary analysis portion of any individual case.

Concerns about New Discretionary Analysis Chapter

The USCIS’s revision of their policy manual purports to reduce subjectivity and vagueness surrounding the exercise of discretion. However, AILA’s USCIS HQ (Benefits Policy) Committee and the Administration Litigation Taskforce (ALTF) claim that the guidance is unclear.[4] It may lead to potential abuse and unpredictability in adjudications. It could still be exercised based on the adjudicator’s personal prejudice against undesirable groups. Therefore, while these new chapters are meant to consolidate the existing policy on discretion, the inconsistent exercise of discretion remains a potential concern. Requestors may have an additional factor of ambiguity that may delay or hinder their application.

If you are curious about how the exercise of discretion could effect your visa petition or immigration application, please contact Chavin Immigration Law Office.

Footnotes

[1] USCIS Policy Manual, Vol. 1: General Policies and Procedures, Part E, Adjudications, Chp 8, Discretionary Analysis.
[2] USCIS Policy Manual, Vol.10: Employment Authorization, Part A, Employment Authorization Policies and Procedures, Chp 5.
[3] USCIS Policy Alert “Applying Discretion in USCIS Adjudications,” 15 July 2020.
[4] AILA’s USCIS HQ (Benefits Policy) Committee and Administrative Litigation Task Force, Practice Alert: The Application of Discretion in USCIS Adjudications. AILA Doc. No. 20081000 (10 August 2020).