USCIS to Consider Anti-Americanism, Antisemitism, and Terrorist Activity When Adjudicating Certain Immigration Benefit Requests

U.S. Citizenship and Immigration Services (USCIS) released an update to its Policy Manual this week clarifying how officers should apply discretion when adjudicating immigration benefits. Because many benefits under the Immigration and Nationality Act (INA) are discretionary — meaning USCIS “may” (or may not) approve them even when eligibility is met — this update gives more insight into the agency’s vetting priorities.

Specifically, the policy update instructs officers that if an applicant has endorsed, promoted, supported, or otherwise espoused the views of:

• Anti-American ideologies or activities,
• Terrorist organizations,
• Antisemitic terrorism,
• Antisemitic terrorist organizations, or
• Antisemitic ideologies,

this will be considered an “overwhelmingly negative factor” when exercising discretion on discretionary immigration benefit requests. USCIS separately expanded the types of benefit requests that will invoke social media screenings to check for anti-American and antisemitic activity.

The policy also clarified when the agency will apply discretion to employment-based immigration benefits. For most employment-based immigrant visa petitions (like EB-1, EB-2, EB-3), USCIS does not apply a discretionary analysis. If an alien meets the statutory and regulatory eligibility criteria, USCIS must approve the petition.

National interest waiver (NIW) decisions under EB-2, however, are subject to agency discretion. This is because the statute says a waiver of the labor certification may be granted if “it is in the national interest”. In those cases, officers must weigh whether the applicant’s proposed endeavor has substantial merit and national importance, whether they are well positioned to advance it, and whether granting the waiver benefits the U.S. — a discretionary determination.

USCIS’s policy update also clarified that discretion in EB-5 petitions comes into play in certain situations, such as: national interest threats (e.g., investment connected to entities or activities hostile to U.S. security or foreign policy interests); fraud or misrepresentation (e.g., falsified business plans, misrepresented source of funds); or criminal misuse of the EB-5 program (e.g., using EB-5 investments to launder money or to finance illicit activity). In these contexts, even if the statutory criteria are satisfied, officers are directed to exercise discretion to deny petitions where the equities strongly disfavor approval.

Finally, the policy update emphasized that officers should consider whether the applicant’s request for admission or parole was made in full compliance with laws, regulations, and policies in effect at the time. While this does not, per se, create a new ground of ineligibility, the update makes clear that an alien’s immigration history can strengthen or weaken their request when discretion is required.

This is a stark departure from Biden administration policies that allowed officers to grant parole en masse to record numbers of unlawful border-crossers.

The role of discretion is one of the lesser-understood aspects of U.S. immigration law. Many immigration benefits are not automatically granted even if the applicant meets the eligibility requirements. Instead, Congress has written into the INA that certain benefits “may be granted” — giving USCIS the authority to make case-by-case judgments as to whether an applicant warrants a positive grant of discretion. Examples of discretionary immigration benefits include asylum, adjustment of status, waivers of inadmissibility, humanitarian parole, and naturalization.

Matthew Tragesser, a spokesperson for USCIS, commented that:

America’s benefits should not be given to those who despise the country and promote anti-American ideologies. U.S. Citizenship and Immigration Services is committed to implementing policies and procedures that root out anti-Americanism and supporting the enforcement of rigorous screening and vetting measures to the fullest extent possible. Immigration benefits — including to live and work in the United States — remain a privilege, not a right.”

Discretionary denials are not new. Immigration officers have always had the authority to deny a discretionary immigration benefit based on evidence of these types of activities. Importantly, terrorist activity already constitutes a statutory ground of inadmissibility that disqualifies most applicants from receiving immigration benefits. What has changed is that USCIS is now explicit in its intent to vet applicants to restrict admission or other forms of immigration benefits from those who espouse anti-American, terrorist, or antisemitic views or activities.

Practically speaking, we can expect USCIS officers to look more closely for evidence of these types of activities, including on social media, and to weigh such evidence as “overwhelmingly negative” factors. Officers are still required to make these discretionary determinations on a case-by-case basis and consider all relevant facts known to the officer. How the update will be carried out (i.e., what exactly will officers consider to be “anti-American”), however, will be key in evaluating whether it is appropriately tailored to weed out security threats from the immigration system.