Discretion is a term that is used throughout immigration law. When applying for an immigration benefit, agency discretion to grant or deny benefits appears throughout the law not only in the context of the provisional waiver applications, but also in the adjudication of underlying benefits— for example, immigrant and nonimmigrant visa eligibility, refugee status, asylum, cancellation of removal, and adjustment of status (AOS). USCIS discretion also appears in the decision-making process other benefits benefits— for example, work authorization, advance parole, reentry permits, and extension or change of nonimmigrant status.
Discretionary determinations are very fact intensive. Building a record in support of a favorable exercise of discretion requires careful attention to the legal and policy issues that help promote ultimate determination to grant or deny relief. Moreover, building a case requires considering, from the outset, where the case will go if and when the adjudications officer declines to exercise favorable discretion and denies relief. Those procedural aspects are themselves substantive factors to consider and argue in support of relief.
Here, is a list of such factors, taken from the Immigration Judge Benchbook, and focused specifically on the exercise of discretion in the context of the adjustment of status (“green card”).
The favorable factors include:
• Existence of family ties in the United States;
• Quality of relationship with respondent’s relatives in the United States;
• Lengthy residence in the United States;
• Approved preference petition;
• Hardship to the foreign national if he or she is forced to go through consular processing;
• Payment of taxes;
• Community service;
• Good moral character;
• Employment history;
• Business ties in the United States; and<
• Property ties in the United States.
Negative factors include:
• Criminal conduct;
• Flagrant immigration violations;
• Lack of truthfulness in immigration proceedings;
• Unlawful entry into the United States;
• Preconceived intent to enter and remain permanently;
• Failure to file income tax returns; and
• Threat to national security.
USCIS will make a decision on an unlawful presence waiver application based upon the showing of extreme hardship to his or her U.S. citizen spouse or parent. In addition to showing the extreme hardship, the applicant must show that he or she merits a favorable exercise of discretion. It is important to show that the favorable factors outweigh the negative factors in both number and impact.
In order to ensure you have completed the I-601A provisional waiver application completely and accurately, you should consult with an experienced immigration attorney who can walk you through the process and provide guidance as to the steps you must take in order to increase your chances of obtaining the I-601 provisional waiver.
Contact the Immigration Attorneys of Geygan & Geygan, Ltd. Today to Schedule a Free Consultation
If you or a loved one need to file a I-601A provisional waiver application, it is imperative that you seek the advice of an immigration attorney as soon as possible. An immigration attorney can help you avoid the common mistakes that often result in a denial of an I-601A provisional waiver application. The immigration attorneys of Geygan & Geygan, Ltd. have helped hundreds of clients with their immigration needs. Our attorneys help clients formulate an individualized plan for residing in the United States lawfully. To find out if our attorneys may be able to help you, contact us today at (513) 791-1673 to schedule a free consultation.