Chapter 10 - Legal Analysis and Use of Discretion

A. Burden of Proof and Standard of Proof

In matters involving immigration benefits, the applicant always has the burden of proving that he or she is eligible to receive the immigration benefit sought.^[1]

The standard of proof applied in adjustment of status proceedings should not be confused with the burden of proof.^[2] The standard of proof relates to the persuasiveness of the evidence necessary to meet the eligibility requirements for a particular benefit. If the applicant is unable to prove his or her eligibility for the immigration benefit by a preponderance of the evidence, the officer may request additional evidence or deny the application.^[3]

In the adjustment of status context, the standard of proof is generally a preponderance of the evidence, proving a claimed fact is more likely than not to be true.^[4] However, in cases in which admissibility is required, if the officer determines that the applicant may be inadmissible, the applicant must demonstrate that he or she is clearly and beyond doubt entitled to be admitted and is not inadmissible.^[5]

Certain adjustment of status provisions are non-discretionary. That is, if the applicant satisfies all statutory and regulatory eligibility requirements, USCIS must approve the application without considering whether the applicant warrants a favorable exercise of discretion. The following table is a non-exhaustive list of non-discretionary adjustment provisions.

Non-Discretionary Adjustment of Status Provisions
Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA)[6]
Refugee adjustment[7]
Haitian Refugee Immigration Fairness Act of 1998 (HRIFA)[8]
Liberian Refugee Immigration Fairness (LRIF)[9]

B. Adjustment of Status Applications Involving Discretion^[10]

Most adjustment of status applicants may only be granted lawful permanent resident (LPR) status in the discretion of USCIS.^[11] That is, even if the applicant meets all of the other statutory and regulatory requirements, USCIS only approves the application if the applicant demonstrates that he or she warrants a favorable exercise of discretion. The following table is a non-exhaustive list of discretionary adjustment case types.

Adjustment of Status Provisions Involving Discretion
Family-based, employment-based, and diversity visa adjustment
Special immigrant-based adjustment (EB-4)
Trafficking victim-based adjustment[12]
Crime victim-based adjustment[13]
Asylee adjustment[14]
Cuban Adjustment Act[15]
Former Soviet Union, Indochinese, or Iranian parolees (Lautenberg parolees)
Diplomats or high-ranking officials unable to return home (Section 13 of the Act of September 11, 1957)[16]

1. Determining Whether Favorable Exercise of Discretion is Warranted

The favorable exercise of discretion and the approval of a discretionary adjustment of status application is a matter of administrative grace, which means that the application is worthy of favorable consideration.^[17]

An applicant who meets the other eligibility requirements contained in the law is not automatically entitled to adjustment of status. The applicant still has the burden of proving that he or she warrants a favorable exercise of discretion.^[18] To determine whether adjustment is warranted, an applicant should supply information that is relevant and material.^[19]

An officer must first determine whether the applicant otherwise meets the statutory and regulatory eligibility requirements. For example, in adjudicating an application for adjustment of status under INA 245(a), the officer first determines if the applicant is barred from applying for adjustment, is eligible to receive an immigrant visa, is admissible to the United States, and if a visa number (if required) is immediately available.

If the officer finds that the applicant otherwise meets the eligibility requirements, the officer then determines whether the application should be approved as a matter of discretion. Given the significant privileges, rights, and responsibilities granted to LPRs, an officer 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.^[20]

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.^[21] 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.^[22]

2. Issues and Factors to Consider in the Totality of the Circumstances

The following table provides a non-exhaustive list of factors or factual circumstances that officers generally should consider in exercising discretion with respect to an application for adjustment of status to that of LPR.

Non-Exhaustive List of Issues and Factors to Consider Related to the Exercise of Discretion in Adjustment Applications

Issue	Positive Factors	Negative Factors
Eligibility Requirements	Meeting the eligibility requirements for adjustment of status.[23]	Not meeting the eligibility requirements may still be considered as part of a discretionary analysis.[24]
Family and Community Ties	Family ties to the United States and the closeness of the underlying relationships.[25] Hardship to the applicant or close relatives if the adjustment application is denied.[26] 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.[27]	Absence of close family, community, and residence ties.[28]
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.[29]	Violations of immigration laws and the conditions of any immigration status held.[30] Current or previous instances of fraud or false testimony in dealings with USCIS or any government agency.[31] Unexecuted exclusion, deportation, or removal orders.[32]
Business, Employment, and Skills	Property, investment, or business ties in the United States.[33] Employment history, including type, length, and stability of the employment.[34] 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.[35] Unauthorized employment in the United States.[36] 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.[37]
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.[38] Compliance with tax laws. Current or past cooperation with law enforcement authorities. Demonstration of reformed or rehabilitated criminal conduct, where applicable.[39] 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.[40] Lack of reformation of character or rehabilitation.[41] Public safety or national security concerns.[42] 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.[43]	Other indicators adversely reflecting the applicant’s character and undesirability as an LPR of this country.[44]

3. Proper Use of Discretion Relative to Adjustment of Status

The exercise of discretion does not mean the decision can be arbitrary, inconsistent, or dependent on intangible or imagined circumstances. At the same time, the exercise of discretion does not involve a calculation or bright line test that is outcome determinative.^[45]

The officer should review the entire record and give appropriate weight to the negative and positive factors relative to the privileges, rights, and responsibilities of LPR status. Once the officer has weighed each factor, the officer should consider all of the factors cumulatively to determine whether the positive factors outweigh the negative ones. If the officer determines that the positive factors outweigh the negative factors, the officer may find that the applicant warrants a favorable exercise of discretion. As negative factors grow more serious though, a favorable exercise of discretion may not be warranted without additional offsetting favorable factors, which in some cases may have to involve the existence of unusual or outstanding equities.^[46]

Officers should discuss discretionary decisions that involve complex or unusual facts with their supervisors, as needed, particularly those involving criminality or national security issues, regardless of whether the outcome is favorable or unfavorable to the applicant.^[47] As appropriate, supervisors may raise issues and consult USCIS counsel.

C. Summary of Adjudication Involving Discretion

The following tables provide a general guideline for how eligibility requirements and discretion play a role in the decision on an adjustment application.^[48]

Summary of Adjudication Involving Discretion

Has Applicant Otherwise Met Eligibility Requirements?	Does Applicant Warrant a Favorable Exercise of Discretion?	Decision
Yes	Yes, the positive factors outweigh the negative factors.	Approve the application. Eligibility requirements are met, including that a favorable exercise of discretion is warranted.
Yes	No, the negative factors outweigh the positive factors.	Deny the application. Eligibility requirements are otherwise met but a favorable exercise of discretion is not warranted. The officer should explain the reasons why USCIS is not exercising discretion in the applicant’s favor. The officer should clearly set forth the positive and negative factors considered and why the negative factors outweigh the positive factors.
No	No, even if the positive factors outweigh the negative factors.	Deny the application. Eligibility requirements are not met. The officer should explain the reasons why the applicant has not met the eligibility requirements. Even if the positive factors outweigh the negative factors, discretion cannot be used to approve an application if the applicant does not meet the other statutory or regulatory requirements.
No	No, the negative factors outweigh the positive factors.	Deny the application. Eligibility requirements are not met and a favorable exercise of discretion is not warranted. It is generally preferable to describe both the statutory and discretionary reasons for the denial, but an officer is not required to discuss the discretionary grounds where the other statutory or regulatory that are the basis for the denial grounds are clear. If the determination on other statutory or regulatory eligibility requirements might be overturned (for example, where there is an unsettled area of law), an officer should also explain the discretionary basis for denying the case. (Officers may consult with USCIS counsel for additional guidance in a specific case.) The officer should explain the reasons why USCIS is not exercising discretion in favor of the applicant. The officer should clearly describe the positive and negative factors considered and why the negative factors outweigh the positive factors.

Footnotes

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[^ 1] See INA 291. See Matter of Arthur (PDF), 16 I&N Dec. 558 (BIA 1978). See Matter of Rivero-Diaz (PDF), 12 I&N Dec. 475 (BIA 1967).

[^ 2] The person who bears the burden of proof must submit evidence to satisfy the applicable standard of proof. 

[^ 3] See 8 CFR 103.2(b)(8)(ii). See 8 CFR 103.2(b)(8)(iii).

[^ 4] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 375 (AAO 2010).

[^ 5] See Matter of Bett (PDF), 26 I&N Dec. 437, 440 (BIA 2014).

[^ 6] See Title II of Pub. L. 105-100 (PDF), 111 Stat. 2160, 2193 (November 19, 1997).

[^ 7] See INA 209(a)(2).

[^ 8] See Division A, Section 902 of Pub. L. 105-277 (PDF), 112 Stat. 2681, 2681-538 (October 21, 1998).

[^ 9] See Section 7611 of the National Defense Authorization Act for Fiscal Year 2020, Pub. L. 116-92 (PDF), 113 Stat. 1198, 2309  (December 20, 2019).

[^ 10] The exercise of discretion in individual cases is described as a balancing of negative factors evidencing an applicant’s undesirability as a permanent resident with the social and humane considerations present on his or her behalf to determine whether relief appears in the best interest of this country. See Matter of Marin (PDF), 16 I&N Dec. 581, 584 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Moralez (PDF), 21 I&N Dec. 296, 300 (BIA 1996). For general guidance on discretion, see Volume 1, General Policies and Procedures, Part E, Adjudication, Chapter 8, Discretionary Analysis [1 USCIS-PM E.8].

[^ 11] See INA 245(a).

[^ 12] See INA 245(l). See 8 CFR 245.23(e)(3).

[^ 13] See INA 245(m). See 8 CFR 245.24(d)(10)-(11).

[^ 14] See INA 209(b).

[^ 15] See Pub. L. 89-732 (PDF) (November 2, 1966).

[^ 16] See Pub. L. 85-316 (PDF) (September 11, 1957).

[^ 17] See Von Pervieux v. INS, 572 F.2d 114, 118 (3rd Cir. 1978). See Ameeriar v. INS, 438 F.2d 1028, 1030 (3rd Cir. 1971). See Matter of Marques (PDF), 16 I&N Dec. 314 (BIA 1977). 

[^ 18] See Matter of Arai (PDF), 13 I&N Dec. 494 (BIA 1970). See Matter of Ortiz-Prieto (PDF), 11 I&N Dec. 317 (BIA 1965).

[^ 19] See Matter of Marques (PDF), 16 I&N Dec. 314 (BIA 1977). See Matter of Mariani (PDF), 11 I&N Dec. 210 (BIA 1965). See Matter of De Lucia (PDF), 11 I&N Dec. 565 (BIA 1966). See Matter of Francois (PDF), 10 I&N Dec. 168 (BIA 1963). See Matter of Pires Da Silva (PDF), 10 I&N Dec. 191 (BIA 1963).

[^ 20] See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Moralez (PDF), 21 I&N Dec. 296, 300 (BIA 1996). For general guidance on discretion, see Volume 1, General Policies and Procedures, Part E, Adjudication, Chapter 8, Discretionary Analysis [1 USCIS-PM E.8].

[^ 21] See Matter of Arai (PDF), 13 I&N Dec. 494 (BIA 1970). See Matter of Lam (PDF), 16 I&N Dec. 432 (BIA 1978).

[^ 22] Before making a final decision, 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. See Volume 1, General Policies and Procedures, Part E, Adjudication, Chapter 8, Discretionary Analysis, Section D, Documenting Discretionary Determinations [1 USCIS-PM E.8(D)]. See Volume 7, Part A, Adjustment of Status Policies and Procedures, Chapter 11, Decision Procedures [7 USCIS-PM A.11].

[^ 23] In the process of determining whether the applicant has otherwise met the eligibility requirements for adjustment of status, the officer might find that certain facts related to eligibility may be relevant to a discretionary decision. See Matter of Mendez-Moralez (PDF), 21 I&N Dec. 296, 301 (BIA 1996) (In the context of waivers of inadmissibility requiring a showing of extreme hardship: “. . . those found eligible for relief under section 212(h)(1)(B) will by definition have already established extreme hardship to qualified family members, which would be a factor favorable to the alien in exercising discretion.”).

[^ 24] In cases where USCIS has determined that the applicant has not met the statutory or regulatory requirements for adjustment of status, officers may still add a discretionary analysis to a denial. See Volume 1, General Policies and Procedures, Part E, Adjudication, Chapter 8, Discretionary Analysis, Section C, Adjudicating Discretionary Benefits [1 USCIS-PM E.8(C)].

[^ 25] See Matter of Arai (PDF), 13 I&N Dec. 494, 496 (BIA 1970). See Matter of Marin (PDF), 16 I&N Dec. 581, 584 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Moralez (PDF), 21 I&N Dec. 296, 301-302 (BIA 1996) (“. . . if the alien has relatives in the United States, the quality of their relationship must be considered in determining the weight to be awarded this equity.”)

[^ 26] See Matter of Arai (PDF), 13 I&N Dec. 494, 496 (BIA 1970). See Matter of Marin (PDF), 16 I&N Dec. 581, 585 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Moralez (PDF), 21 I&N Dec. 296, 301 (BIA 1996).

[^ 27] See Matter of Arai (PDF), 13 I&N Dec. 494, 496 (BIA 1970). See Matter of Marin (PDF), 16 I&N Dec. 581, 584-85 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Moralez (PDF), 21 I&N Dec. 296, 301 (BIA 1996). Residence must be lawful to be considered a positive factor. See Matter of Lee (PDF), 17 I&N Dec. 275, 278 (Comm. 1978).

[^ 28] Based on the totality of the circumstances, the absence of family, community, and residence ties, by itself, may not warrant an unfavorable exercise of discretion, but officers consider the lack of sufficient equities to offset other negative factors when making discretionary decisions that are in the best interest of the United States.  See Matter of Marin (PDF), 16 I&N Dec. 581, 587 (BIA 1978).

[^ 29] See Matter of Mendez-Moralez (PDF), 21 I&N Dec. 296, 301 (BIA 1996).

[^ 30] See Matter of Marin (PDF), 16 I&N Dec. 581, 584 (BIA 1978). See Matter of Lee (PDF), 17 I&N Dec. 275, 278 (Comm. 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Moralez (PDF), 21 I&N Dec. 296, 301 (BIA 1996). However, the Board of Immigration Appeals (BIA) found that a record of immigration violations standing alone does not conclusively support a finding of lack of good moral character. Further, how recent the violation was can only be considered when there is a finding of a poor moral character based on moral turpitude in the conduct and attitude of a person which evinces a callous conscience. In such circumstances, there must be a measurable reformation of character over a period of time in order to properly assess an applicant’s ability to integrate into society. In all other instances, when the cause for deportation has been removed and the person now appears eligible for issuance of a visa, the time factor should not be considered. See Matter of Lee (PDF), 17 I&N Dec. 275 (Comm. 1978).

[^ 31] Fraud or false testimony may be considered as a matter of discretion regardless of materiality.

[^ 32] In cases where a removal order does not impact eligibility or jurisdiction over adjustment of status, for example, where a removal order has been issued to an “arriving alien” but not executed, USCIS generally does not exercise favorable discretion. The USCIS officer may consult with the local U.S. Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations (ERO) office concerning the merits and equities of the case and whether the removal order might be withdrawn. If ICE withdraws or rescinds the removal order or obtains a withdrawal or rescission of the removal order from the Executive Office for Immigration Review (EOIR), USCIS adjudicates the case as appropriate. If the removal order is not withdrawn or rescinded, the removal order should be considered a significant adverse factor and any denial of adjustment may include the grounds cited in the removal order.

[^ 33] See Matter of Marin (PDF), 16 I&N Dec. 581, 584-85 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Moralez (PDF), 21 I&N Dec. 296, 301 (BIA 1996).

[^ 34] See Matter of Mendez-Moralez (PDF), 21 I&N Dec. 296, 301 (BIA 1996).

[^ 35] In Matter of Marin (PDF), 16 I&N Dec. 581, 585 (BIA 1978), the BIA considered that a history of stable employment is a positive factor used to determine whether discretion should be favorably exercised. Conversely, officers should consider a history of long unemployment or underemployment, absent any disabilities or age in relation to employability, as a factor to determine whether or not approving the adjustment of status application is in the best interest of the United States. 

[^ 36] Even if an exemption applies to an applicant who would otherwise be barred from adjustment of status, the officer may consider unauthorized employment in the totality of the circumstances.

[^ 37] This includes employment that is illegal under federal law even when state laws have decriminalized such conduct, including employment in the marijuana industry. Illegal industries under federal law include, but are not limited to, possession, manufacture or production, or distribution or dispensing of marijuana. See 21 U.S.C. 841(a) (“unlawful for any person knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.”). See 21 U.S.C. 844 (simple possession). See 21 U.S.C. 802(15) (defining manufacture) and 8 U.S.C. 802(22) (defining production).

[^ 38] See Matter of Marin (PDF), 16 I&N Dec. 581, 585 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Moralez (PDF), 21 I&N Dec. 296, 301 (BIA 1996).

[^ 39] See Matter of Marin (PDF), 16 I&N Dec. 581, 585 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Moralez (PDF), 21 I&N Dec. 296, 301 (BIA 1996). However, reformation is not an absolute prerequisite to a favorable exercise of discretion. Rather, the discretionary analysis must be conducted on a case-by-case basis, with rehabilitation a factor to be considered in the exercise of discretion. See Matter of Edwards (PDF), 20 I&N Dec. 191, 196 (BIA 1990) (considering rehabilitation a significant factor in view of the nature and extent of the respondent’s criminal history, which spanned 10 years).

[^ 40] The officer should not go behind the record of conviction to reassess a noncitizen’s ultimate guilt or innocence, but rather inquire into the circumstances surrounding the commission of the crime in order to determine whether a favorable exercise of discretion is warranted. See Matter of Edwards (PDF), 20 I&N Dec. 191, 197 (BIA 1990).

[^ 41] See Matter of Marin (PDF), 16 I&N Dec. 581, 585 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 196 (BIA 1990). See Matter of Mendez-Moralez (PDF), 21 I&N Dec. 296, 301 (BIA 1996).

[^ 42] For definitions of public safety and national security concerns, see Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens (PDF), PM-602-0050.1, issued June 28, 2018.

[^ 43] See Matter of Mendez-Moralez (PDF), 21 I&N Dec. 296, 301 (BIA 1996).

[^ 44] See Matter of Marin (PDF), 16 I&N Dec. 581, 584 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Mendez-Moralez (PDF), 21 I&N Dec. 296, 301 (BIA 1996).

[^ 45] For a full discussion on weighing discretionary factors, see Volume 1, General Policies and Procedures, Part E, Adjudication, Chapter 8, Discretionary Analysis, Section C, Adjudicating Discretionary Benefits, Subsection 3, Weighing Factors [1 USCIS-PM E.8(C)(3)].

[^ 46] See Matter of Arai (PDF), 17 I&N Dec. 494, 496 (BIA 1970). See Matter of Patel (PDF), 17 I&N Dec. 597, 601 (BIA 1980). For example, USCIS generally does not favorably exercise discretion in certain cases involving violent or dangerous crimes except in extraordinary circumstances. Another example relates to applicants seeking adjustment based on T or U nonimmigrant status: Depending on the nature of the adverse factors, applicants may be required to clearly demonstrate that denial of adjustment would result in exceptional and extremely unusual hardship. Even if the applicant makes such a showing, however, USCIS may still find favorable exercise of discretion is not warranted in certain cases. See 8 CFR 245.23(e)(3). See 8 CFR 245.24(d)(11).

[^ 47] For more information, see Volume 1, General Policies and Procedures, Part E, Adjudication, Chapter 8, Discretionary Analysis, Section C, Adjudicating Discretionary Benefits, Subsection 4, Supervisory Review [1 USCIS-PM E.8(C)(4)].

[^ 48] For a full discussion on writing discretionary decisions, see Volume 1, General Policies and Procedures, Part E, Adjudication, Chapter 8, Discretionary Analysis, Section D, Discretion in Decision Writing [1 USCIS-PM E.8(D)].