On August 19, 2025, USCIS issued Policy Alert PA-2025-16 revising the Policy Manual to expand the discretionary factors considered in certain immigration benefit requests. The guidance takes immediate effect and applies to both pending and new filings.

Under the Immigration and Nationality Act, many benefits require not only statutory eligibility but also a favorable exercise of discretion. Officers are instructed to weigh positive and negative factors under a totality-of-circumstances standard. Historically, this has included family ties, employment record, immigration compliance and humanitarian considerations. The August 2025 guidance adds new categories of heavily weighted negative factors, shifting the balance of analysis.

The changes represent a significant tightening of how discretion will be applied, especially for adjustment of status, extensions or changes of nonimmigrant status, employment authorization and select employment-based petitions.

 

Anti-American and Terrorist-Related Activities

 

The most consequential change is the instruction that support for or promotion of anti-American ideologies, antisemitic terrorism, or terrorist organizations is an overwhelmingly negative factor in discretionary adjudications. USCIS has not defined “anti-American,” leaving the term broad and open to interpretation. Officers may look to statutory bars on communism, anarchism, and violent overthrow of the US government for guidance but may apply the concept more broadly.

USCIS will also review social media posts by or relating to applicants when assessing whether such activity is present. This expansion of digital vetting raises concerns for individuals whose online presence could be misinterpreted.

Preparing for potential requests for clarification on social media activity will become an important part of case strategy for applicants.

 

Parole and Lawful Entry Considerations

 

The update confirms that an applicant’s manner of entry or parole is a relevant discretionary factor. For example, beneficiaries of humanitarian parole programs may face additional scrutiny if sponsor affidavits or support documentation were inaccurate. This creates risk for those who entered under expedited parole initiatives and later pursue adjustment of status.

 

Employment-Based Petitions: NIWs and EB-5

 

Most employment-based immigrant and nonimmigrant petitions, such as H-1B, L-1, EB-1, EB-2 (other than NIW), and EB-3, remain adjudicated solely on statutory eligibility. However, two categories involve discretionary analysis:

 

a. National Interest Waivers (NIWs) require USCIS to decide whether waiver of labor certification benefits the national interest.

b. EB-5 Investor Petitions allow USCIS to deny approval if contrary to the national interest or if fraud, deceit, or misuse is involved.

 

While the August 2025 guidance does not explicitly state that anti-American factors apply to these cases, their discretionary nature makes it likely that adjudicators will apply the expanded framework. Investors and NIW applicants should anticipate heightened evidentiary scrutiny.

 

Other Impacted Case Types

 

The revised policy affects a range of discretionary benefits, including:

 

• Applications for extensions or changes of nonimmigrant status
• Applications to reinstate F-1 or M-1 student status
• Employment Authorization Document (EAD) applications, including H-4 EADs, F-1 OPT and STEM OPT, and adjustment-based EADs

 

Applicants in these categories will face closer examination of conduct, affiliations, and compliance with entry conditions. Delays, requests for evidence, and higher denial rates should be anticipated.

 

 

Implications for Employers & Applicants

 

The August 2025 USCIS guidance marks a clear signal that discretionary scrutiny will become sharper and more unforgiving.

Employers sponsoring foreign nationals should be prepared for extended timelines and more intensive documentation demands.

For applicants, the key takeaway is that eligibility alone is no longer enough. Even if you meet all the statutory requirements for adjustment, employment authorization, or a change of status, officers now have explicit instructions to look deeper into your personal history, associations, and even your digital footprint.

Applicants should assume that social media activity, past affiliations, and the accuracy of every prior immigration filing will come under review. A casual online post or unexamined past association can now be treated as an “overwhelmingly negative factor,” with no clear definition of what counts as “anti-American.” That level of vagueness creates risk.

The best defense is preparation. Review your online presence before filing. Remove or clarify content that could be misinterpreted. Be proactive in gathering evidence of positive equities: stable employment, family ties, community involvement and consistent compliance with immigration law. If there are potential negatives, do not ignore them.

Above all, applicants must recognize that USCIS officers have been told to use discretion assertively. That means longer adjudications, more detailed requests for evidence and a higher chance of denial where the record is not clearly positive.

 

Need Assistance?

 

The August 2025 guidance signals a more aggressive discretionary stance by USCIS. While eligibility requirements remain unchanged, the discretionary overlay has been sharpened.

If you are preparing to file for adjustment of status, employment authorization, a change of status or an investor or national interest waiver petition, the updated USCIS guidance means you cannot afford to overlook discretionary risks. Every filing must now anticipate deeper scrutiny of past conduct, entry history and even online activity. Treat this new guidance as a warning to build the strongest record possible, not just to prove eligibility but to persuade on discretion.

Our attorneys are experienced in identifying potential red flags before they become a problem and in presenting a strong record that balances any negative factors with compelling positive equities. Contact us today for tailored legal advice to safeguard your application under the latest USCIS policy changes.