USCIS Clarifies Discretionary Nature of Adjustment of Status Decisions

USCIS’s recent statement underscores that approval of adjustment of status (AOS) applications is not automatic upon meeting eligibility criteria but depends on USCIS’s discretionary judgment, including factors like good moral character and admissibility under INA §245. From our practical experience, this means even well-qualified corporate executives applying under EB-1C or investors under EB-5 must present comprehensive, compelling evidence beyond basic eligibility to avoid RFEs or denials.

We advise L-1 intracompany transferees and EB-1C applicants to meticulously document their executive roles, company structure, and business operations, as USCIS will scrutinize the bona fides of the managerial position and the company’s ability to support the role. Specifically, referencing 8 CFR 204.5(j)(3)(i), detailed organizational charts and proof of the company’s ongoing viability reduce discretionary risks. Additionally, we suggest early submission of I-485 adjustment applications when priority dates are current to allow more time for USCIS to conduct discretionary reviews without time pressure.

For EB-5 investors, thorough documentation of the lawful source of funds and sustained project viability is critical, as USCIS exercises discretion particularly on financial integrity issues under INA §203(b)(5). Based on cases we handled last year, investors who proactively update USCIS with project progress reports and maintain clear audit trails experience fewer RFEs. We recommend investors align closely with their project managers to prepare these materials ahead of filing.

From our casework, common pitfalls include gaps in lawful status, inconsistent information across forms, and insufficient proof of eligibility or admissibility. We recommend clients conduct a pre-filing compliance audit, verifying I-94 validity, ensuring all underlying petitions (like L-1 or H-1B) remain valid, and confirming no grounds of inadmissibility apply. For example, last quarter a fintech executive’s EB-1C adjustment was delayed due to missing evidence of continuous employment, which we rectified promptly through a targeted RFE response. In summary, USCIS’s clarification on the discretionary nature of AOS decisions signals the need for heightened diligence. We encourage all corporate executives and investors to review their application packages with a critical eye, maintain impeccable status, and submit robust supporting evidence. Taking these concrete steps will maximize the likelihood of a smooth adjustment process and reduce avoidable delays. ---