How USCIS New Discretionary Rules Could Lead to More Case Denials 

Immigration rules are constantly evolving, and sometimes even small policy changes can make a huge difference in whether your case is approved or denied. USCIS has recently updated its guidance on how officers use discretion in immigration cases—and this update could mean more denials for certain applicants. If you are planning to apply for an immigration benefit, it is critical that you understand how these changes might affect your case. Let’s break it down. 

At McBean Law, we help clients nationwide navigate the complex world of U.S. immigration law with confidence, compassion, and clarity. Led by Attorney LaToya McBean Pompy, a nationally recognized immigration attorney and 2024 & 2025 honoree of Best Lawyers: Ones to Watch®, McBean Law brings unmatched experience in both federal policy and courtroom advocacy. Before founding the firm in 2016, Attorney McBean Pompy served at the highest levels of government—including roles with the U.S. Department of Justice, U.S. Congress, and federal and state courts. 

What is Discretion in Immigration? 

Before we dive into the changes, it’s important to understand the concept of discretion. For many immigration benefits such as adjustment of status, extensions of stay, and certain employment-based petitions, meeting the basic eligibility requirements isn’t always enough. A USCIS officer must also determine that you are deserving of a “favorable exercise of discretion.” 

This means the officer weighs all the positive and negative factors in your case to make a final decision. The recent update to the USCIS Policy Manual provides new, specific guidance on how officers should conduct this discretionary review. 

New “Overwhelmingly Negative” Factors 

The most impactful change is the new weight given to certain negative factors. USCIS has now explicitly stated that if an individual has supported, promoted, or endorsed: 

• Terrorism 

• Anti-American ideologies or activities 

• Anti-Semitic organizations or terrorism 

This will be considered an overwhelmingly negative factor in the discretionary analysis. In practical terms, involvement in these activities will make it nearly impossible to receive an approval, leading to an almost certain denial of your case. USCIS is also expanding its use of social media vetting to screen for these types of activities. 

This new guidance is effective immediately and applies to all pending or newly filed cases. 

The Importance of Compliance 

Another critical element of the updated policy is the focus on compliance with laws at the time of your application for admission or parole into the U.S. 

• Positive Factor: If you followed all applicable laws and rules when you entered the country, this will be viewed as a strong positive factor in your case. 

• Negative Factor: However, if you did not comply with the laws in place at the time, it could significantly hurt your chances of approval. This reinforces the need for a clean and lawful immigration history. 

Discretion in Employment-Based and Student Cases 

The new guidance also clarifies the role of discretion in specific visa categories: 

1. Employment-Based Petitions: For most employment-based cases (like EB-1, EB-2, EB-3), discretion is not a factor. If you meet the statutory and regulatory requirements, the petition is generally approved. However, there are two key exceptions: 

• National Interest Waivers (NIW): The NIW is inherently a discretionary benefit, and the updated policy confirms this. 

• EB-5 Investor Petitions: Discretion will be applied to EB-5 cases, especially when there are signs of fraud, misrepresentation, criminal activity, or threats to national security. 

2. Student and Non-Immigrant Visas: The policy manual now explicitly confirms that discretion is used for applications like extensions of stay, changes of status, and reinstatements for F or M visa students. This means your entire immigration history and overall conduct will be considered when you apply for these benefits. 

What This Means for You 

This policy shift signals a tightening of the rules and a more rigorous approach to discretionary review. While positive factors like a clean immigration history and strong ties to the U.S. can help, a single overwhelmingly negative factor can lead to a denial. 

This is a serious development that underscores the need for careful and comprehensive preparation. Before you file any immigration application, it is more important than ever to: 

• Review your complete history: Look at your immigration record, online presence, and any past affiliations or activities that could be a red flag under these new rules. 

• Address all potential negative factors: Be prepared to present a strong case that highlights your positive contributions and rehabilitative efforts, if applicable. 

• Seek legal counsel: Given the heightened risk of denial, working with an experienced immigration attorney is crucial. They can help you assess your case, identify potential issues, and build the strongest possible application to put your best foot forward. 

Don’t take any chances with your future. This update is in effect now and could directly impact your case. Stay informed, stay compliant, and seek professional guidance to navigate this new landscape. You can also watch Attorney LaToya McBean Pompy’s in-depth YouTube video, “How USCIS Will Deny More Cases in 2025,” where she breaks down the new discretionary rules, explains who is most at risk of denial, and shares practical tips to strengthen your case.