On August 19, 2025, US Citizenship and Immigration Services (USCIS) issued updated policy guidance that expands how officers may evaluate discretionary factors in reviewing immigration benefits, including national interest waiver (NIW) petitions, adjustment of status (AOS) applications, and employment authorization (EAD) requests. While discretion has long been part of these adjudications, the new policy provides more detailed instructions to officers and reflects increased scrutiny in certain areas.
Under this updated framework, USCIS officers are required to assess the totality of circumstances before approving a benefit request that involves discretion. For example, officers may consider positive factors such as a stable employment history, property ownership, tax compliance, strong family or community ties in the United States, and lawful immigration status. At the same time, officers will also consider negative factors such as criminal history, prior immigration violations, public safety risks, or involvement in or support for anti-American or extremist organizations. Officers are specifically instructed to review social media and other public information for any content that may indicate such associations.
Applicants should be extremely cautious about their online presence. Any posts or affiliations on social media that could be interpreted as hostile to the United States, its institutions, or its values may be treated as significant negative factors. We strongly recommend reviewing all public-facing content, including social media and professional profiles, to ensure consistency with the applicant's immigration status and lawful work authorization. LinkedIn profiles, for example, should accurately reflect job duties and employment dates in line with the terms of the visa or work status.
In the context of NIW petitions, the update does not change the underlying legal framework but reaffirms that USCIS officers maintain full discretion to determine whether waiving the job offer and labor certification requirement is in the national interest. Because of the recent increase in NIW filings, particularly following the introduction of premium processing, officers appear to be applying greater scrutiny to whether the proposed endeavor is credible, objectively defined, and realistically achievable. Although the third prong of Matter of Dhanasar explicitly states that the waiver may be appropriate even when U.S. workers are available, recent adjudications suggest that officers may be improperly requiring petitioners to show that the waiver will not harm the interests of U.S. workers. Officers could go as far as also to question whether the petition reflects a narrative shaped primarily by legal counsel rather than the applicant's own experience and qualifications. This expanded use of discretion may signal a shift in focus from basic eligibility toward a deeper evaluation of the petition's authenticity and good-faith foundation.
It is also important to note that approval of the I‑140 petition does not guarantee a favorable outcome at the adjustment of status (Form I‑485) stage. Adjustment of status is a separate and discretionary benefit, and USCIS must independently determine whether the applicant continues to warrant a favorable exercise of discretion. This updated policy guidance applies fully to AOS adjudications, reinforcing the principle that discretion remains a required element even after I‑140 approval. Applicants must be prepared to demonstrate ongoing eligibility through strong discretionary factors such as compliance with immigration laws, lawful status, consistent employment or study, and positive contributions in the United States. Officers are now required to explain both the positive and negative factors considered in any discretionary denial and to provide a clear rationale for the final decision. As a result, applicants should treat the adjustment of status process as a fresh and critical stage in their immigration journey, not a mere formality following I‑140 approval.
We encourage clients to consult legal counsel when preparing any petition that involves discretion. Careful planning and early documentation of contributions, lawful presence, and the execution of the proposed endeavor are critical to building a strong record in support of future applications.
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