On June 22, 2020, the President issued a Proclamation that addresses, among other things, the Department of Homeland Security’s (DHS’s) administration of employment authorization benefits.
In addition to relying on statutory and regulatory provisions on employment authorization, USCIS reminds officers to refer to existing guidance, now consolidated in the USCIS Policy Manual, on the exercise of discretion in adjudications.
For many immigration benefits, such as certain applications for lawful permanent residence and employment authorization documents, the benefit requestor has the burden of demonstrating eligibility for the benefit sought, including that a favorable exercise of discretion is warranted.
If the requestor otherwise establishes eligibility, which may require a showing that the alien is not inadmissible under the law, and positive discretionary factors present in the particular case outweigh any negative factors, USCIS should favorably exercise discretion. For benefits involving discretion, a discretionary analysis is a separate component of the adjudication of the benefit request; it is typically assessed at the end of the review, after an officer has determined that the requestor meets all other applicable eligibility requirements.
This guidance, contained in Volumes 1 and 10 of the Policy Manual, incorporates and replaces Chapter 10.15 of the Adjudicator’s Field Manual (AFM), as well as the AFM’s related appendices, and related policy memoranda.The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance on the topic.
It is not quite known how far adjudicating Officers will take the new guidance when adjudicating applications moving forward. The guidance does however demonstrate discretion will likely play a bigger role in say, adjustment of status applications and the like, then it did in the past. For this reason, it is even more important to contact a trusted immigration firm before filing for an immigration benefit to ensure you have a plan and documents necessary to meet the discretionary “standards” for the benefit sought.