How USCIS Handles Our Cases?
— — about discretionary analysis
Have you ever wondered how USCIS reviews and analyzes our petitions and applications? How they determine whether a case should be approved or denied? In this article, we will discuss something about the discretionary analysis that should be applied by USCIS officers when they review petitions and applications.
When we file a petition or an application to request certain immigration benefits, we are required to demonstrate that we are eligible for the benefits sought. Then, the USCIS officer will review our cases thoroughly and make a decision on them. Some of the immigration benefits are not discretionary. In these cases, as long as we file the case properly and meets the eligibility requirements, USCIS must approve the benefit request. However, the truth is the majority of immigration benefits are discretionary, which means that meeting the statutory and regulatory requirements alone does not entitle us to the benefit sought. For those cases, USCIS officers will be authorized to make final decisions.
The following table provides an overview of immigration benefits and whether discretion is involved in the adjudication of such benefits.
As shown in the above chart, officers’ discretion applies to a majority of nonimmigrant and immigrant petitions and applications. Does that mean that our cases are totally at USCIS officers’ discretion? Not exactly. There are limitations on how the officer may exercise discretion, so they may not exercise discretion arbitrarily, inconsistently, or in reliance on biases or assumptions. In general, officers should follow a three-step process when adjudicating a petition or application involving a discretionary analysis.
Step One: Fact finding
Fact finding is the process of gathering and assessing evidence, and this could be the ONLY step that attorneys can work on, together with their clients. In order to pass the fact finding process, it is important to obtain as many credible and persuasive supporting documents as possible in the beginning. Otherwise, USCIS may issue RFE or NOID if they think existing evidence is not sufficient. Therefore, it is important to trust your attorneys and collaborate with them actively.
Step Two: Determining whether requestor or applicant meets the threshold eligibility requirements
After the fact finding process, USCIS officers will conduct initial assessment of the case and determine whether the minimum requirements are met. If the officer determines the requestor or applicant has not met the eligibility requirements for the benefit sought, he or she may deny the request without completing a discretionary analysis. These threshold eligibility requirements are straightforward and obvious, so discretionary analysis would be unnecessary for step two.
Step Three: Conducting discretionary analysis
When exercising his or her discretion, an officer needs to analyze and weigh both positive and negative factors and consider the totality of the circumstances in the specific case. There is no formula for determining the weight to be given a specific positive or negative factor. Hence, officers are required to conduct discretionary analysis based on their experience. However, when it comes to extremely complex cases, officers may discuss with their supervisors, sometimes, with USCIS local counsel.
After all, USCIS needs to make a decision on each petition or application. If the case is approved, we are all set. If unfortunately, we receive a denial notice, it may not be the end of the story. Almost all unfavorable decisions made by USCIS can be reconsidered, reopened, or appealed. Alternatively, a more efficient and convenient approach is to request supervisory review simply by sending an email to USCIS. To be noted, supervisory review is ONLY available for petitions under premium processing, as USCIS does not respond to requests for cases under regular processing.
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