Navigating USCIS Green Card Approvals: The Power of Discretion in National Interest Cases for Out-of-Status Applicants
In the intricate landscape of U.S. immigration, the United States Citizenship and Immigration Services (USCIS) holds the keys to many hopeful immigrants’ futures, particularly those who entered the United States legally but are now out of status and seeking to adjust their status or secure a green card. Among the myriad rules and regulations, the concept of prosecutorial discretion stands out for its significant ability to shape outcomes. This authority, vested in USCIS officers, allows for nuanced decision-making in green card cases, including those rooted in family ties and employment. This discussion delves into the essence of prosecutorial discretion, with a spotlight on its application in Employment-Based Second Preference (EB-2) National Interest Waiver (NIW) cases, and outlines the criteria for timely filing for an extension of stay or change of status, showcasing the positive impact of such discretionary decisions.
Table of Contents
The Essence of Discretion in Immigration
At its core, prosecutorial discretion encompasses the USCIS officers’ capacity to direct the course of immigration cases. This includes the power to pause, proceed with, or halt removal proceedings, as well as to pass judgment on applications for immigration benefits. Governed by a comprehensive framework of policies and legal standards, these decisions are crafted to align with the broader objectives of the U.S. immigration agenda.
The National Interest Waiver: A Closer Look
The EB-2 NIW emerges as a critical area where prosecutorial discretion is keenly applied. This provision allows certain employment-based green card seekers to bypass the standard labor certification process, provided their employment is deemed to serve the U.S. national interest. But what defines the “national interest”? It encompasses contributions that significantly bolster the U.S. economy, advance educational initiatives, or yield substantial benefits to U.S. residents in myriad ways.
The Impact of Discretionary Decisions
The discretionary authority of USCIS officers has historically led to favorable outcomes for numerous immigrants, especially those involved in EB-2 NIW cases. By enabling officers to consider the broader impact of an applicant’s contributions to the national interest, USCIS facilitates endeavors that profoundly benefit the United States. This approach not only enriches the nation through the diverse talents and innovations of immigrants but also reaffirms the U.S.’s dedication to attracting and retaining individuals who significantly contribute to the country’s well-being.
Retroactively Filing for Extension or Change of Status to Regain Lawful Status for Green Card Adjustment: A Guideline
A pivotal aspect of prosecutorial discretion is its role in determining the outcome of requests to extend a stay or change status, particularly when the applicant’s previously accorded status has lapsed or expired before the filing date. USCIS may overlook such lapses if the applicant can demonstrate that:
- The delay was due to extraordinary circumstances beyond their control;
- The delay’s duration was commensurate with the circumstances;
- They have otherwise adhered to their nonimmigrant status;
- They continue to be a bona fide nonimmigrant; and
- They are not currently facing removal or deportation proceedings.
Situations deemed as extraordinary circumstances might include delays stemming from labor disputes or the inability to secure necessary labor certifications due to interruptions in government funding. In cases where USCIS approves an untimely application or petition, the approval is backdated to the expiration date of the previous nonimmigrant admission period. For applications for a change of status filed late, the change becomes effective on the date of approval, with USCIS considering the applicant or beneficiary to have maintained lawful status during the period excused.
Final Thoughts
The exercise of prosecutorial discretion by USCIS officers is a foundational element of the U.S. immigration system, providing the flexibility needed to consider the unique circumstances of each case. This is particularly evident in the adjudication of EB-2 NIW cases, which highlight the critical role of immigrants’ contributions to the national interest. By understanding the criteria for timely filing for an extension of stay or change of status, immigrants can better navigate the complexities of the U.S. immigration process, contributing positively to the diverse fabric of American society.
HAYMAN-WOODWARD has developed several successful strategies in obtaining discretion from immigration officers for more than 200 families who were previously denied representation by other law firms who deemed them a “lost cause”. If you wish to have one of our attorneys review your case, schedule a consultation now in the link below.