What is US Policy Manual?

  • The USCIS Policy Manual is the agency’s centralized online repository for USCIS’ immigration policies
  • The USCIS Policy Manual will ultimately replace the Adjudicator’s Field Manual (AFM), the USCIS Immigration Policy Memoranda site, and other policy repositories


  • For adjustment of status, the applicant has the burden of demonstrating eligibility, including that a favorable exercise of discretion is warranted
  • If the applicant otherwise establishes eligibility and USCIS finds the positive discretionary factors in a particular case outweigh the negative factors, the officer should exercise favorable discretion and approve the adjustment application
  • However, if the negative factors outweigh the positive factors an exercise of discretion to deny is appropriate

USCIS considers the totality of the circumstances which may include factors:

  • An applicant’s conduct
  • Character
  • Family or other lawful ties to the United States
  • Immigration status and history
  • Any other humanitarian concerns

To determine whether the applicant warrants a favorable exercise of discretion.

Use of Discretion for Adjustment of Status

This guidance is contained in Volume 7 of the Policy manual and it supersedes any related prior guidance on the topic

Why Change of Status to Lawful Permanent Resident (LPR) is Scrutinized more Than Other Non-Immigrant Visas?

Lawful permanent resident (LPR) status confers several significant privileges, rights, and responsibilities that invoke a commitment to greater assimilation in the United States and offers a pathway to U.S. citizenship

These privileges, rights, and responsibilities are more than a legal alien, and it includes:

  • Living permanently in the United States, provided the LPR does not commit any actions that would make the LPR removable under immigration law
  • Working in the United States in any legal capacity of the LPR’s qualification and choosing
  • Being protected by all laws of the United States, including state of residence and local jurisdictions
  • Obeying all laws of the United States and localities
  • Filing income tax returns and reporting income to the U.S. Internal Revenue Service and state tax authorities
  • Supporting the democratic form of government of the United States
  • Registering with the Selective Service, if male and age 18 through 25
  • Petitioning for a spouse, unmarried children, and unmarried son(s) or daughter(s) to receive permanent residence
  • Applying for U.S. citizenship once eligible
  • USCIS issues a permanent resident card (Form I-551) (commonly called a green card) to the successful adjustment applicant as proof of such immigrant status

Overview of Immigration Laws (Late 19th Century to Present)

A. Early Immigration Laws

  • During the 1920s, Congress established annual quotas that imposed the first numerical restrictions on immigration known as the National Origins Quota System
  • The system limited immigration from each country to a designated percentage of foreign-born persons of that nationality who resided in the United States according to the 1910 census
  • These quotas did not apply to spouses and children (unmarried and under 21 years old) of U.S. citizens
  • These immigration laws required all intending immigrants to obtain an immigrant visa at a U.S. embassy or consulate abroad and then travel to the United States and seek admission as LPR
  • Hence, there was no legal procedure for aliens already living in the United States without leaving the country
  • By 1935, the administrative process of pre-examination was developed so that an alien already temporarily in the United States could obtain permanent resident status more quickly and easily
  • In general, the pre-examination process consisted of an official determination in the United States of the alien’s immigrant visa eligibility, followed by a trip to Canada or another country for an arranged immigrant visa appointment at a U.S. consulate, and a prompt return and admission to the United States as a permanent resident
  • Near the onset of World War II, the U.S. government became increasingly concerned about the possibility of hostile foreign enemies living in the United States
  • In response, Congress enacted the Alien Registration Act of 1940, which required foreign-born persons 14 years of age and older to report to a U.S. post office, and later to an immigration office, to be fingerprinted and register their presence in the United States
  • Those with a valid claim to permanent residency received an Alien Registration Card


B. Immigration and Nationality Act of 1952

  • The passage of the Immigration and Nationality Act (INA) of 1952 organized all existing immigration laws into one consolidated source
  • The INA established a revised version of the controversial National Origins Quota System, limiting immigration from the eastern hemisphere while leaving immigration from the western hemisphere unrestricted
  • The INA also introduced a system of numerically limited immigrant preference categories, some based on desirable job skills and others based on family reunification
  • In addition, the INA established a formal system of temporary (or nonimmigrant) categories under which aliens could come to the United States for various temporary purposes such as to visit, study, or work
  • For the first time, the INA also provided a procedure for aliens temporarily in the United States to adjust status to permanent resident status without having to travel abroad and undergo consular processing
  • INA remains the foundation of current immigration law in the United States


C. Post-1952 Developments

  • Congress amended the INA in 1965 to abolish the National Origins Quota System, creating in its place separate quotas for immigration from the eastern and western hemispheres
  • These amendments also established a revised preference system of six categories for family-based and employment-based categories, and added a seventh preference category for refugees
  • The law introduced an initial version of what has evolved into today’s permanent labor certification program
  • The Refugee Act of 1980 established a separate immigration program for refugees, eliminating the existing seventh preference category, and formally adopted the legal definition of “refugee” used by the United Nations
  • Congress next enacted the Immigration Marriage Fraud Amendments of 1986 (IMFA) with the goal of deterring immigration-related marriage fraud

D. Immigration Act of 1990

  • Significantly increased the worldwide quota limits on permanent immigration from 290,000 to 675,000 per year (plus up to another 125,000 for refugees)
  • Established separate preference categories for family-based and employment-based immigration, including moving several special immigrant categories into the employment-based preferences and adding a new category for immigrant investors
  • Established the Diversity Visa Program, making immigrant visas available to randomly selected aliens coming from countries with historically low rates of immigration
  • Created several new nonimmigrant work visa categories: O, P, Q, and R
  • Reorganized and expanded the types of qualitative bars to U.S. entry, known as inadmissibility or exclusion grounds

Note: Over the years, Congress has created several adjustment programs otherwise different from a general adjustment that apply to relatively small numbers of aliens who meet highly particularized criteria. Most of these programs are found in the law that is not part of the INA

What is the Difference Between “Burden of Proof” and “Standard Proof”?

The applicant seeking immigration benefits always has the burden of proving that he or she is eligible to receive the immigration benefit sought

The “standard of proof” applied in the adjustment of status proceedings is not the same as the “burden of proof”

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

What is the “Standard of Proof” in the Context of Adjustment of Status?

  • 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
  • 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

Difference Between “Non- Discretionary” and “Discretionary” Adjustment of Status

  • Certain adjustment of status provisions is non-discretionary: it means 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. Such as Refugee adjustment, Haitian Refugee Immigration Fairness Act of 1998
  • Most adjustment of status applicants may only be granted lawful permanent resident (LPR) status in the discretion of USCIS: it means 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

List of Discretionary Adjustment Case Types:

  • Family-based, employment-based, and diversity visa adjustment
  • Special immigrant-based adjustment (EB-4)
  • Trafficking victim-based adjustment
  • Crime victim-based adjustment
  • Asylee adjustment
  • Cuban Adjustment Act
  • 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

Note: This list is not exhaustive

How Does an Immigration Officer Determine 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
  • An applicant who meets the other eligibility requirements contained in the law is not automatically entitled to an adjustment of status
  • The applicant still has the burden of proving that he or she warrants a favorable exercise of discretion
  • 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
  • If there is no evidence that the applicant has negative factors present in his or her case
  • 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
  • However, 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


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


Positive Factors

Negative Factors

Eligibility Requirements Meeting the eligibility requirements for adjustment of status Not meeting the eligibility requirements may still be considered as part of a discretionary analysis
Family and Community Ties
  • ·       Family ties to the United States and the closeness of the underlying relationships
  • ·       Hardship to the applicant or close relatives if the adjustment application is denied
  • ·       Length of lawful residence in the United States, a status held and conduct during that residence, particularly if the applicant began his or her residency at a young age
Absence of close family, community, and residence ties
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 forms of relief and the underlying humanitarian, hardship, or other factors that resulted in the approval
  • Violations of immigration laws and the conditions of any immigration status held
  • Current or previous instances of fraud or false testimony in dealings with USCIS or any government agency
  • Unexecuted exclusion, deportation, or removal orders
Business, Employment, and Skills
  • ·       Property, investment, or business ties in the United States
  • ·       Employment history, including type, length, and stability of the employment
  • ·       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
  • Unauthorized employment in the United States
  • 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
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
  • Compliance with tax laws
  • Current or past cooperation with law enforcement authorities
  • Demonstration of reformed or rehabilitated criminal conduct, where applicable
  • 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
  • Lack of reformation of character or rehabilitation
  • Public safety or national security concerns
  • 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 ·       Other indicators adversely reflecting the applicant’s character and undesirability as an LPR of this country


Is the Exercise of Discretion Arbitrary, Inconsistent, or Dependent on Intangible or Imagined Circumstances?

  • The decision is not 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
  • 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
  • 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
  • As appropriate, supervisors may raise issues and consult USCIS counsel

If you have any question or comments about this particular policy update or have questions about the Green Card procedure in general, you can schedule a consultation with us:

Schedule a call at 469-994-9407  or contact us using the form.