USCIS Policy Alert PA-2025-16 Clarifies Negative Discretionary Factors

(CAMP SPRINGS, MD) U.S. Citizenship and Immigration Services issued Policy Alert PA-2025-16 on August 19, 2025, clarifying how officers should weigh discretionary factors in certain immigration benefit requests. Effective immediately, USCIS assigns “overwhelmingly negative” weight to any past conduct that endorsed, promoted, supported, or otherwise espoused the views of terrorist or anti-American groups, including those linked to antisemitic terrorism, antisemitic terrorist organizations, or antisemitic ideologies. The update applies to cases pending or filed on or after publication and is now controlling policy across the USCIS Policy Manual.

Key changes announced

• USCIS now treats support for anti-American or terrorist organizations—including promotion of antisemitic terrorism and related ideologies—as an overwhelmingly negative factor in all discretionary analyses. USCIS states it will enforce all relevant immigration laws “to the maximum degree,” including the use of discretion, to deny benefit requests in such cases, consistent with INA 313(a).
• Officers must consider whether an application for admission or parole was made in compliance with all laws, regulations, and policies in effect at that time. An applicant’s compliance history will weigh in the discretionary balance.
• In employment-based immigrant cases, USCIS clarifies the exercise of discretion during adjudication applies only when the applicant seeks a national interest waiver (NIW) under INA 203(b)(2)(B). This guidance does not expand discretion to other employment-based immigrant petitions.
• For EB-5 matters, USCIS clarifies how discretion applies to investor petitions and applications in cases involving threats to the national interest, fraud, deceit, misrepresentation, and criminal misuse, referencing INA 203(b)(5)(N)(i) and 203(b)(5)(O)(i).
• USCIS affirms it exercises discretion when adjudicating requests for extension of stay, change of status, reinstatement of F or M status, and certain employment authorization categories filed under 8 CFR 274a.12(c).

Effective date, scope, and citations

The guidance is effective immediately and applies to benefit requests pending or filed on or after August 19, 2025. USCIS updated multiple volumes of the Policy Manual, including:

• Volume 1 (General Policies and Procedures), Part E, Chapter 8 (Discretionary Analysis) — [1 USCIS-PM E.8]
• Volume 2 (Nonimmigrants), Part A, Chapter 4 (Extension/Change of Status) — [2 USCIS-PM A.4]; and Part F, Chapter 8 (Students F, M) — [2 USCIS-PM F.8]
• Volume 7 (Adjustment of Status), Part A, Chapter 10 (Legal Analysis and Use of Discretion) — [7 USCIS-PM A.10]
• Volume 10 (Employment Authorization), Part A, Chapter 4 (Adjudication) — [10 USCIS-PM A.4]

USCIS notes this update supersedes any prior conflicting guidance and may include minor conforming edits.

Where discretion applies and how it’s weighed

For benefit types that require discretion—such as adjustment of status, certain nonimmigrant requests, and specific employment and investor filings—the applicant bears the burden under INA 291 to show a favorable exercise of discretion is warranted.

The adjudicative process is a two-step approach:
1. Confirm statutory and regulatory eligibility.
2. Conduct a separate discretionary analysis weighing positive and negative factors based on the totality of the circumstances.

Factors considered may include:
– Conduct and character
– Family ties and community connections
– Immigration history and compliance
– Humanitarian considerations

The update emphasizes that compliance with immigration laws is a relevant positive factor. Conversely, activities connected to terrorism, anti-American ideology, or antisemitic terrorism are assigned significant negative discretionary weight—up to overwhelmingly negative.

Important: The applicant must demonstrate why a favorable exercise of discretion is warranted after meeting threshold eligibility requirements.

Treatment of past admission or parole requests

USCIS adds that a relevant factor in discretionary reviews is whether the person’s admission or parole application conformed to applicable laws, regulations, and policies at the time of application.

• Officers will consider whether prior entries or parole requests were sought and obtained correctly.
• Properly obtained admission/parole can strengthen the applicant’s compliance record in the discretionary balance.

Employment-based cases and the NIW limitation

USCIS confirms discretion within employment-based immigrant petitions is limited to National Interest Waiver (NIW) cases.

• NIW filings use Form I-140 (Immigrant Petition for Alien Workers): https://www.uscis.gov/i-140
• Applicants pursuing an NIW should prepare for the two-step review: establish eligibility and persuade the adjudicator to exercise discretion favorably.
• USCIS cites INA 203(b)(2)(B) for NIW authority.

According to analysis by VisaVerge.com, this NIW-focused clarification aligns the Policy Manual with statutory limits and avoids overreach into employment-based categories that do not call for discretion.

EB-5 investor petitions and Regional Center applications

USCIS clarifies discretion in the EB-5 context, including how it applies to investor and Regional Center filings:

Relevant forms:
– Form I-526 Immigrant Petition by Standalone Investor: https://www.uscis.gov/i-526
– Form I-526E Immigrant Petition by Regional Center Investor: https://www.uscis.gov/i-526e
– Form I-956 Application for Regional Center Designation: https://www.uscis.gov/i-956
– Form I-956F Application for Approval of an Investment in a Commercial Enterprise: https://www.uscis.gov/i-956f

Discretion will be applied in cases involving:
– Threats to the national interest
– Fraud, deceit, or misrepresentation
– Criminal misuse

USCIS will apply discretion consistent with INA 203(b)(5)(N)(i) and 203(b)(5)(O)(i). The Policy Manual update also revises tables in Volume 1 to reflect investor and Regional Center content and updates related footnotes.

Nonimmigrant extensions, changes, and student reinstatement

USCIS states decisions on extensions of stay and changes of status involve discretion. The update also confirms discretion applies to reinstatement of F or M nonimmigrant status.

• Officers may weigh conduct, immigration compliance, and other relevant factors in deciding whether to grant these requests.
• The agency also confirms discretion applies to certain employment authorization requests filed under 8 CFR 274a.12(c) (reflected in Volume 10).

Adjustment of status: discretion in practice

The update adds text to Volume 7 clarifying the analysis for adjustment of status applications involving discretion.

• Even where threshold eligibility is met, USCIS may still deny adjustment based on the discretionary balance.
• Applicants should be ready to address:
  • Conduct
  • Immigration history
  • Family ties
  • Humanitarian factors

Evidence demonstrating compliance—for example, maintaining status or following parole rules—can carry weight. By contrast, connections to anti-American or terrorist ideology will weigh heavily against approval.

Practical considerations for applicants and representatives

• Expect officers to verify whether prior parole or admission requests were filed and obtained correctly.
• In any discretionary case, document and submit evidence of:
  • Good conduct
  • Family and community ties
  • Consistent compliance with immigration laws
• For NIW filings, present both strong merits and a clear argument for a favorable exercise of discretion.
• For EB-5 participants and Regional Centers, ensure filings are accurate, complete, and include strong controls to prevent fraud or misrepresentation concerns that could trigger negative discretionary findings.

Warning: Activities endorsing, promoting, or supporting terrorist or anti-American groups—or ideologies tied to antisemitic terrorism—now carry overwhelmingly negative discretionary weight and can lead to denial of benefit requests.

For the official policy text and chapters, see USCIS’s Policy Manual page on Discretionary Analysis at https://www.uscis.gov/policy-manual/volume-1-part-e-chapter-8.