USCIS recently published guidance on how the agency adjudicates immigration benefits when discretion applies. The updated discretionary benefits analysis provides additional guidance on the treatment of circumstances where an individual has exhibited support of anti-American views or the views of a terrorist organization or group, including organizations who support or promote antisemitic terrorism, antisemitic terrorist organizations, and antisemitic ideologies. The updated guidance indicates that activities supporting anti-American views or the views of a terrorist organization or group will also be considered an overwhelmingly negative factor in the discretionary analysis of the noncitizen’s immigration benefits.
Discretionary benefits analysis
On August 19, 2025, USCIS published an updated guidance on its discretionary analysis for certain immigration benefits. The updated guidance addresses both the relative weight of certain factors and how such factors may be considered.
When discretionary applies
All immigration benefits require USCIS to assess evidence to determine if the statutory and regulatory requirements have been met for that benefit. However, certain immigration benefits also require USCIS to exercise discretion based on the totality of the circumstances, and to weigh positive and negative factors in order to assess whether the immigration benefit should ultimately be granted or denied.
The updated USCIS guidance affirms which immigration benefits involve discretionary review, including for these common immigration benefits types:
Considering discretionary factors
In its discretionary analysis, USCIS can consider facts related to a noncitizen’s conduct, character, family ties, and activities in the United States (e.g., employment, schooling, or any evidence of criminal activity). While there is not a particular formula to weigh the positive and negative factors, the updated guidance indicates USCIS will consider the following as overwhelmingly negative:
“Circumstances where a noncitizen has “endorsed, promoted, supported, or otherwise espoused anti-American views or the views of a terrorist organization or group (including in social media content). This includes organizations who support or promote anti-American ideologies or activities, antisemitic terrorism, antisemitic terrorist organizations, and antisemitic ideologies.”
Noncitizens seeking immigration benefits involving discretionary review should expect closer examination of any conduct or social media content that is potentially viewed as anti-American, antisemitic, or supportive of anti-American or terrorist organizations or groups. Vialto will continue to monitor the situation and provide further guidance as it becomes available.
For a deeper discussion on the above, please reach out to your Vialto Partners point of contact, or alternatively:
Manish Daftari
Partner
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