Recent Updates to the USCIS Policy Manual Confirm that Joint I-751 Petitions are NOT subject to Discretionary Review

Posted on Aug 20, 2020

In previous blog posts, I have written about what I think is one of the greatest benefits of filing Joint I-751 Petitions – that as long as the eligibility requirements are met, USCIS officers are not allowed to apply “discretion” in making a decision of whether to approve or deny an I-751 petition. Instead, the regulations require officers to follow a strict set of guidelines that practically require the approval of the petition if all eligibility requirements are met. This, of course, includes the requirement of having to document the bona fides of the underlying marital relationship to prove that it is legitimate. This rule was recently confirmed by USCIS in an update to the USCIS Policy Manual.

The update that I am talking about can be found in Volume 1, Part E, Chapter 8 of the Policy Manual in a section titled “Discretionary Analysis” which you can access by clicking HERE. In this section, USCIS provides an extensive table showing a list of U.S. Immigration Benefits Involving Discretionary Review, and whether discretion is “involved” for each listed benefit (either “Yes” or “No”). If you scroll down to the entry for “Removal of Conditions on Permanent Residence” you will note in the whether discretion is involved column that it says “No (with some exceptions)28” with footnote 28, which states:

28.  When a family-based conditional permanent resident files a Petition to Remove Conditions on Residence (Form I-751) as a WAIVER REQUEST based on termination of marriage, battery or extreme cruelty, or extreme hardship, it is a DISCRETIONARY decision. See INA 216(c)(4).

Note that in addition to confirming that discretion is NOT involved for joint I-751 petitions that it ALSO says that DISCRETION IS INVOLVED for an I-751 WAIVER REQUEST (based on the 3 available waiver grounds: good faith marriage, battery or extreme cruelty, or extreme hardship).

And so you may ask … “What is the big deal here and why should I care whether the USCIS officer deciding my I-751 engages in a discretionary analysis of my petition?”

The short answer is because when USCIS officers have to (or are allowed to) make a discretionary determination, their opinions, feelings, and personal biases enter into the process and may negatively influence their decision. Given that applicants for U.S. immigration benefits come with a full range of immutable characteristics, including, gender, gender identity, sexual orientation, religious beliefs, racial backgrounds, tribal affiliations, imputed political opinions, and a country of origin (which may or may not be on a watch “list”), it is inevitable that the personal biases and opinions of USCIS officers will enter into the decision making process.

Notably, however, the USCIS Policy manual specifically states that “the officer may not exercise discretion arbitrarily, inconsistently, or in reliance on biases¬†or assumptions.” Whether or not and to what extent humans are even capable of making decisions without the influence of their personal biases or assumptions is a matter of debate. In the realm of judicial adjudication, this debate has literally raged on for centuries and there are those who would argue in favor of injecting current context into the decision making process in order to achieve socially desirable results. While my experience has been and continues to be, that USCIS adjudicators are reasonable and fair, and “good cases” are approved every day, my point is that discretion, in any form, moves the process away from being objective and toward being subjective.

This point is also made clear in the section of the USCIS Policy Manual which attempts to explain and define the concept of discretionary analysis:

“In some contexts, there are regulations and case law that outline certain factors that officers must review and use as a guide in making a discretionary determination. However, there is no exhaustive list of factors that officers must consider. To perform a discretionary analysis, officers must weigh all positive factors present in a particular case against any negative factors in the totality of the record. The analysis must be comprehensive, specific to the case, and based on all relevant facts known at the time of adjudication. For complex or difficult cases, officers should consult with supervisors and local counsel.”¬†

Note that the key points here are that: (1) there is no exhaustive list of factors to consider; (2) officers must “weigh” all “positive” factors against “negative” factors; (3) for complex or difficult cases, officers should “consult” with supervisors and local counsel.

Perhaps my point is best made by asking you to ask yourself a question: if you have a choice of whether to give the officer making the decision on your I-751: (a) the option of weighing your positive factors against your negative factors, considering factors that are not even on an objective list, and asking other random officers and lawyers to weigh in on your case OR (b) an objective checklist of objective eligibility and disqualifying factors that they must consider by either checking a “yes” or “no” box in order to decide whether to approve or deny your petition, would you choose (a) or (b)? If your answer was choice (b) then you understand why you should almost always try to file a joint I-751 petition instead of a waiver petition; unless of course, you have a specific ground for the waiver petition, such as abuse or hardship that can only be pursued as a waiver.

Joint I-751 petitions filed by couples who are separated, but still married, can be very complicated. Very often, these couples can still make a very good case to have the petition adjudicated jointly by proving that their marriage was entered into in good faith. This is part of the analysis looks at the past and the history of the relationship.

But since the viability of the joint petition will also depend upon the current status of the marital relationship, these cases can be very dynamic and strategic decisions may need to be made “mid-flight” while the I-751 petition is pending. I find this to be true mainly because: (1) on the most basic level, people change their minds and will either reconcile or grow further apart, and (2) events and life circumstances can change grounds of eligibility, so that, for instance, filing a joint petition may no longer be possible, or that something has happened (divorce or spousal abuse) that opens the door for a waiver petition. These changes may require you to seek expert advice and guidance so that you can pursue your best options with regards to your I-751 petition.

I have been practicing U.S. Immigration Law for over 25 years and have represented thousands of clients in a wide variety of cases and circumstances, both before USCIS, the U.S. Department of State, and the U.S. Immigration Court. During this time, I have handled a significant number of complex I-751 petitions, both as the attorney of record and as a hired consultant for clients who were just seeking advice on how they should proceed with their I-751 Petition to Remove Conditions on Residence.

If you have questions about this blog post and whether your I-751 petition will be subject to Discretionary review, contact my office to schedule an appointment: (953) 385-3111 or sean@hummelaw.com.

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