Immigration law is never just about paperwork. Meeting the statutory requirements for a benefit such as adjustment of status, naturalization, or certain employment-based petitions does not guarantee approval. In many cases, the final hurdle is discretion. USCIS officers must decide whether to grant a benefit as a matter of judgment, weighing favorable and unfavorable factors under the “totality of circumstances.” This balancing test is open-ended, meaning officers may consider any relevant fact about the applicant’s conduct, history, and ties.
The immigration lawyers at Zneimer & Zneimer, P.C. carefully follow every development in USCIS policy. The latest Policy Alert, issued August 19, 2025 (PA-2025-16), clarifies several areas where discretion plays a decisive role, especially when an applicant has engaged in or supported anti-American or terrorist activities, when parole or admission applications were inconsistent with the law at the time, and in limited employment-based contexts like National Interest Waivers and EB-5 investor petitions.
The Factors USCIS Weighs
USCIS policy provides a non-exhaustive list of factors officers may consider. These include both positive equities and negative factors.
Favorable Factors
- Eligibility for the benefit sought
- Family ties in the United States and the closeness of those relationships
- Hardship to the applicant or family if denied
- Contributions to the community and service
- Length of lawful residence in the United States, including age at entry
- Service in the U.S. Armed Forces
- Steady employment history
- Property or business ties in the United States
- History of tax compliance
- Likelihood of imminent lawful permanent resident status
- Evidence of good moral character (affidavits, community testimony)
- Voluntary community service beyond what courts required
Adverse Factors
- Nature and seriousness of inadmissibility grounds
- Criminal history in the United States or abroad, and rehabilitation concerns
- Moral depravity or criminal tendencies, shown in serious or repeated crimes
- Findings of juvenile delinquency
- Noncompliance with immigration laws
- Unexecuted removal, deportation, or exclusion orders
- Fraud or false testimony in dealings with USCIS or other agencies
- Sham marriage to circumvent immigration laws
- Public safety or national security concerns
- Other conduct reflecting poor character
Anti-American Ideologies and National Security
Under INA §313(a) / 8 U.S.C. §1424, and reaffirmed in the 2025 Policy Alert, the following are treated as overwhelmingly negative factors and some represent statutory bars:
- Endorsing, promoting, supporting, or espousing anti-American ideologies
- Supporting or affiliating with terrorist organizations
- Supporting antisemitic terrorism or antisemitic terrorist organizations
- Advocating world communism or totalitarian dictatorship
- Advocating the overthrow of the U.S. government by force, violence, sabotage, or other unconstitutional means
- Publishing, distributing, or possessing propaganda that promotes such ideologies
- Social media content reflecting these endorsements
Compliance with Admission or Parole Applications
A new emphasis from the Policy Alert emphasizes that USCIS now specifically evaluates whether applications for admission or parole complied with laws, regulations, and policies in effect at the time. Noncompliance weighs heavily against discretion.
Employment-Based Discretion
USCIS clarified that discretion plays a role in limited employment-based contexts:
- National Interest Waivers (NIW) under INA §203(b)(2)(B)
- EB-5 Investor Petitions where fraud, misrepresentation, or threats to national security are present
- Regional Center Applications (Forms I-956, I-956F) where integrity issues arise
Other Contexts
- Requests for extension or change of status (including F and M students)
• Certain employment authorization applications under 8 CFR 274a.12(c)
• Adjustment of status where eligibility is met but discretionary review applies
Applicants May Be Asked Directly
Because the burden rests with the applicant to prove they deserve favorable discretion, officers may ask in an interview or written request: “Why should USCIS grant you this benefit as a matter of discretion?” Applicants must be ready to answer honestly and persuasively, supported by evidence.
Illustrative Example
An applicant for adjustment of status admits to a past immigration violation, an overstay of several years. At interview, the officer asks why approval is warranted. A strong answer would:
- Acknowledge the overstay rather than evade it
- Emphasize U.S. citizen family ties and children dependent on the applicant
- Highlight steady employment, consistent tax payments, and community service
- Express regret for the violation and demonstrate full compliance since
As an example, consider formulating an answer that highlights these points:
“I did overstay my visa for about six months, and I regret that mistake. Since then, I have followed all immigration rules. For the past eight years, I’ve worked as a salesperson at a car dealership, and for the last three years I’ve also been self-employed on weekends running a construction business. I have always filed and paid my taxes on time. My wife of 8 years is a U.S. citizen, and we have two children, ages 6 and 7, both born here and attending public school. I coach my son’s soccer team and help at my daughter’s school fundraisers. I have built a stable, law-abiding life here, and I hope these facts show why I deserve a favorable exercise of discretion.”
By presenting both acknowledgment and positive equities, the applicant gives the officer a basis to weigh the totality of circumstances favorably.
How Zneimer & Zneimer Guide Clients
At Zneimer & Zneimer, P.C., the immigration lawyers prepare clients to prove eligibility and to present a compelling discretionary case. Their approach includes:
- Spotting red flags early by identifying criminal history, immigration violations, or potential ideological concerns before USCIS does
- Building the equities by collecting tax records, employment evidence, affidavits, and proof of community service
- Helping clients to formulate effective summary of their story by preparing applicants for questions like, “Why should USCIS approve your case?” by using evidence of the client’s life
- Adapting to policy changes by incorporating the latest USCIS guidance, such as PA-2025-16, into every case strategy
- Defending against allegations when fraud, misrepresentation, or national security concerns arise, crafting responses grounded in evidence, statute, case law, and constitutional protections
Conclusion
USCIS discretion is where law meets judgment. Officers weigh both sides of the ledger, and outcomes depend on how well applicants present their full story. With the August 2025 Policy Alert, USCIS reinforced its hard line against anti-American ideologies, fraud, and noncompliance, while still leaving room for strong positive equities to prevail in other cases. Applicants should never assume that meeting eligibility is enough. They must be ready to show why they deserve discretion.
The immigration lawyers at Zneimer & Zneimer, P.C. stand at the forefront of these developments, ensuring that every client’s case is prepared for both eligibility and the crucial discretionary analysis. Contact us for help with your immigration case.