By David Hirson, Esq., Claudia Rea Jimenez, Esq., and Karla Samayoa
An update on immigration policy from August alters how United States Citizenship and Immigration Services (USCIS) applies discretion in its decision-making. It narrows the scope of discretion in most employment-based cases and introduces new negative factors that can lead to more denials.
This change also directly affects EB-5 applications.
Understanding discretion and its application
Discretion allows USCIS officers to evaluate applicants holistically: considering both statutory eligibility and external factors. While meeting statutory and regulatory requirements remains the first step, officers must also determine whether granting the benefit serves the best interests of the United States.
The core principle: positive factors must outweigh negative ones. However, not all benefit requests involve discretion. For those that do, USCIS now outlines clearer boundaries on when and how discretion applies.
Key discretionary considerations include:
Eligibility Requirements
Family and Community Ties
Immigration Status and History
Business, Employment, and Skills
Community Standing and Moral Character
Restricting the Scope of Discretion
Historically, discretion was a broad tool. Today, its use is sharply limited in employment-based adjudications:
National Interest Waivers (NIWs) under INA §203(b)(2)(B) remain subject to discretionary balancing.
EB-5 investor petitions (Forms I-526/I-526E and related regional center filings) involve discretion only when issues such as fraud, misrepresentation, national security threats, or criminal misuse are present.
Other employment-based petitions are generally no longer decided on discretionary grounds.
This narrowing removes ambiguity in routine employment-based filings while highlighting where discretion still carries weight.
New negative discretionary factors: A game changer
The most consequential shift lies in the introduction and emphasis of negative discretionary factors, which can outweigh all positive equities and lead to denials even in strong cases. These include:
Endorsement or promotion of anti-American or terrorist ideologies, including antisemitic terrorist organizations or beliefs.
Fraud, misrepresentation, or deceit in any immigration benefit process.
Noncompliance in admission or parole applications, such as false statements or omissions.
Criminal misuse of immigration benefits or conduct implicating national security.
USCIS underscores that in cases involving terrorism, anti-American ideology, or similar threats, officers will enforce immigration law “to the maximum degree.” It is, perhaps, the most ambiguous—and controversial—element is the inclusion. This term lacks precise definition and is susceptible to interpretation, influenced by changing administrations and cultural dynamics.
Impact on employment-based visas
For most employment-based petitions, discretion is no longer a deciding factor—except in cases involving National Interest Waivers (NIWs) or EB-5 petitions where serious compliance concerns arise[3]. This brings predictability for standard filings but significantly heightens risk for EB-5 stakeholders.
Key considerations include:
Stricter scrutiny of source-of-funds documentation, requiring detailed tracing and transparency.
Historic compliance issues, such as prior parole violations or public activity linked to extremist ideologies, can outweigh strong merits.
Program-level oversight, with regional centers now under closer review for integrity and regulatory adherence.
The bottom line: one negative factor can derail an otherwise approvable case.
What do these changes mean for EB-5?
EB-5 petitions face the most rigorous discretionary standards in years. While USCIS has narrowed discretionary review for most employment-based cases, EB-5 remains an exception when red flags appear—such as fraud indicators, misrepresentation, or potential national security concerns.
The consequences are far-reaching:
Transparency and evidentiary burden have increased, particularly in proving lawful source of funds.
Historical missteps or perceived ideological affiliations can override positive equities, regardless of investment compliance.
Regional centers share accountability, as USCIS applies these standards to both investor filings and program operations.
In today’s environment, one adverse finding can be decisive, making proactive compliance measures essential.
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