U.S. Citizenship and Immigration Services: Authorities and Procedures

U.S. Citizenship and Immigration Services: Authorities and Procedures

Legal Sidebari

U.S. Citizenship and Immigration Services:
Authorities and Procedures
Updated June 1, 2022
Congress has specified the conditions under which non-U.S. nationals (aliens, as the term is used in the
Immigration and Nationality Act [INA]) may lawfully enter or remain in the United States. Under this
framework, aliens who satisfy applicable requirements may qualify for certain types of immigration
benefits, such as adjustment to lawful permanent resident (LPR) status. U.S. Citizenship and Immigration
Services (USCIS), a component of the Department of Homeland Security (DHS), is tasked with
adjudicating immigration benefit applications. This Legal Sidebar provides a brief overview of USCIS’s
authorities and procedures. (Two other DHS components, Immigration and Customs Enforcement [ICE]
and Customs and Border Protection [CBP]), are primarily responsible for the agency’s immigration
enforcement activities, and their authorities are discussed in other CRS products.)
Background
The Homeland Security Act of 2002 established USCIS as the component within DHS responsible for
adjudicating immigration benefit requests. USCIS’s powers derive from those originally exercised by the
former Immigration and Naturalization Service, which dissolved upon the creation of DHS. USCIS’s
responsibilities include, among other things, the adjudication of immigrant visa petitions (e.g., family- or
employer-based petitions), applications to adjust to LPR status, “affirmative” asylum applications,
petitions for naturalization, and employment authorization applications. USCIS has the authority to
charge fees for these services, and, through regulations, the agency has set the required filing fees for
different types of benefit requests (subject to fee waivers and exemptions in some cases).
Different USCIS “directorates” perform that agency’s adjudicatory functions relating to benefits. The
Service Center Operations adjudicates benefit requests at five regional service centers in cases where
applicant interviews are not required. Other benefit adjudications, many of which require personal
interviews, are handled by two other directorates. Refugee, Asylum and International Operations
adjudicates refugee status applications, humanitarian parole requests, and “affirmative” asylum
applications (i.e., applications made by persons not in removal proceedings). It also considers whether
aliens apprehended at the border who are subject to expedited removal, or those who were previously
removed and subject to reinstatement of removal, are potentially eligible for asylum or related protections
from removal. Another directorate, Field Operations, adjudicates other types of benefit requests through
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written correspondence and interviews, processes background security checks, and conducts
naturalization ceremonies. Additionally, the Administrative Appeals Office (AAO) adjudicates appeals
from the denial of certain immigration benefits. (Some USCIS components perform nonadjudicatory
functions; more information about these components can be found here.)
Adjudication of Benefit Requests
An applicant for an immigration benefit must show that he or she is eligible for that benefit and not
inadmissible (some inadmissibility grounds, including certain criminal-based grounds, are subject to
discretionary waivers). The adjudicating officer generally considers whether the applicant has shown
eligibility for the benefit by a preponderance of the evidence (i.e., that it is more likely than not) under the
facts of the case. Federal regulations describe the procedures for adjudicating benefit requests,
administrative appeals of adverse decisions, and motions to reopen or reconsider USCIS adjudications.
Adjudication Process
An applicant, who may elect to be represented by counsel, must submit all evidence related to the benefit
request that is required by regulations or USCIS instructions, and any required filing fees and biometric
information. USCIS may reject an application that is not signed and submitted with filing fees, and there
is no appeal from the rejection. If the benefit request is properly filed, USCIS may require the applicant
(or a petitioning sponsor or other individual residing in the United States) to appear for an interview.
DHS regulations provide that the absence of required evidence creates a presumption of ineligibility for
an immigration benefit (but if a required document is unavailable, an applicant may submit secondary
evidence or affidavits instead). Generally, if the required evidence is not submitted, USCIS may deny the
benefit request or request submission of the missing evidence within a specified period of time. If the
initial evidence is submitted but does not show eligibility, USCIS may either (1) deny the application, (2)
request more evidence, or (3) notify the applicant of its intent to deny the application and the basis for
denial. If an applicant fails to respond to a request for more evidence or notice of intent to deny, USCIS
may deny the application as abandoned (which is not appealable), deny it based on the evidence already
in the record, or deny for both reasons. The reasons for a denial must be explained in writing. If the
decision is appealable, the officer is to provide the applicant the appropriate appeal form.
Use of Discretion
Generally, if evidence submitted with a benefit request shows eligibility, USCIS will grant the
application. However, for most benefit requests, USCIS may still decide whether the applicant merits that
benefit as a matter of discretion. The Board of Immigration Appeals (BIA)—the highest administrative
body responsible for interpreting federal immigration laws—has long recognized that granting an
immigration benefit is “a matter of administrative grace,” and the applicant has the burden of showing
that a favorable exercise of discretion is warranted. In exercising discretion, USCIS must balance any
adverse factors with favorable equities and considerations. Typically, adverse factors have included prior
immigration violations, criminal history, and any other evidence of bad character. Favorable factors have
included family ties and length of residence in the United States, evidence of hardship in the event of an
adverse decision, history of employment, community service, and any other evidence of good character
(e.g., affidavits from family or friends). In 2020, USCIS issued policy guidance that lists discretionary
factors to be considered in adjudications, and explains how officers should weigh those factors.
Although USCIS’s decision is typically discretionary, some benefit requests do not involve discretion. If
the alien shows eligibility, the agency must grant the application. For example, under provisions of the
INA, an alien applying for U.S. citizenship “shall be naturalized” if the alien meets specified criteria.

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Similarly, an alien spouse who is granted conditional permanent resident status “shall” have that
conditional status removed upon a determination that the alien’s qualifying marriage is bona fide.
Administrative Appeals
Under DHS regulations, certain USCIS decisions may be appealed. The AAO, the appellate body within
USCIS, has jurisdiction to consider some (but not all) benefit request decisions, including the denial of
most employer-based immigrant visa petitions, Temporary Protected Status (TPS) applications, and
naturalization applications. An AAO appeal (and any supporting brief) is typically filed within 30 days
after service of the adjudicating officer’s decision (33 days if served by mail). Generally, the officer is
required to review the appeal, and the officer may, within 45 days, treat the appeal as a motion to reopen
or reconsider and take favorable action. Otherwise, the officer must forward the appeal to the AAO. On
appellate review, the AAO considers the record anew (de novo) and addresses any questions of fact, law,
policy, or discretion. The AAO decision may be published as a precedential decision.
While the AAO generally has appellate jurisdiction over USCIS decisions, the BIA, an agency within the
Department of Justice’s Executive Office for Immigration Review, may also have jurisdiction. Typically,
the BIA adjudicates appeals of decisions by immigration judges in formal removal proceedings. DHS
regulations also confer the BIA with authority to review certain USCIS decisions, including the denial of
family-based visa petitions. An appeal to the BIA must be filed within 30 days after service of the USCIS
decision. The BIA exercises de novo review of all questions raised on appeal from the USCIS decision.
Motions to Reopen and Reconsider
An alien (or petitioning sponsor) may file a motion to reopen or to reconsider following a USCIS decision
(including an AAO decision). The motion must be filed within 30 days of the decision (33 days if the
decision is mailed). An untimely motion to reopen may be excused if the delay is reasonable and beyond
the control of the filer. A motion to reopen must state the new facts to be presented in the reopened
proceedings and be supported by affidavits or other evidence. A motion to reopen an application denied as
abandoned for failure to respond to a request for evidence must also show that the requested evidence was
immaterial, that the evidence was submitted, or that the evidence request was never received. A motion to
reconsider must provide the basis for reconsideration, be supported by any precedential rulings to show
that the underlying decision incorrectly applied law or policy, and show that the decision was incorrect
based on the evidence. An adjudicating officer’s decision on a motion to reopen or reconsider may be
appealed to the AAO if the original decision was appealable. An alien may also file a motion to reopen or
reconsider following a BIA decision under standards and procedures set forth in DOJ regulations.
Limitations to USCIS’s Adjudicatory Authority
USCIS’s authority to adjudicate benefit requests may be restricted in some cases. For example,
regulations provide that USCIS has jurisdiction to adjudicate an application for adjustment to LPR status
unless an immigration judge has jurisdiction over the application. If an alien is in formal removal
proceedings, an immigration judge has “exclusive jurisdiction” over the adjustment application. This rule,
however, does not apply to an “arriving alien” (an alien who seeks admission into the United States at a
designated port of entry) who is placed in formal removal proceedings, except in limited circumstances.
Accordingly, an arriving alien in removal proceedings generally may only file an adjustment application
with USCIS. Some federal courts have rejected legal challenges to this regulatory framework brought by
arriving aliens who sought to pursue adjustment in their formal removal proceedings. However, in cases
where there is a final order of removal, some courts have held that the BIA may not rely on the

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regulations to deny an arriving alien’s motion to reopen his or her removal proceedings in order to
provide time for USCIS to adjudicate a pending adjustment application.
USCIS’s ability to adjudicate asylum applications may also be limited in some circumstances. Generally,
an alien (regardless of legal status) who is physically present in the United States may “affirmatively”
apply for asylum with USCIS. Under DHS regulations, an asylum officer adjudicates the application and,
following an interview, either grants or denies the application, or (if the alien is removable) refers the
application for formal removal proceedings. Under a 2022 DHS rule, asylum officers may also consider
asylum applications filed by aliens detained at the border who are subject to expedited removal and found
to have a credible fear of persecution. If an alien is already placed in formal removal proceedings,
however, the alien generally may only pursue asylum “defensively” in those proceedings—not before
USCIS. Of special note, USCIS has initial jurisdiction over asylum applications filed by unaccompanied
alien children, even if the child is in removal proceedings (if USCIS determines the child is not eligible
for asylum, the child may also pursue asylum defensively in formal removal proceedings).
Certain other applications are only adjudicated in formal removal proceedings and not before USCIS. For
instance, some removable aliens who have resided in the United States for lengthy periods of time and
meet other requirements may apply for cancellation of removal in removal proceedings. Aliens may also
pursue voluntary departure, which allows them to depart the United States at their own expense rather
than being removed, strictly in removal proceedings. Applications for withholding of removal and
protection under the Convention Against Torture, which are humanitarian protections related to asylum
that bar an alien’s removal to a country where the alien likely faces persecution or torture (but which,
unlike asylum, provide no path to LPR status) are also typically adjudicated in removal proceedings.
(However, under a 2022 DHS rule, USCIS asylum officers may consider whether arriving asylum seekers
who are subject to expedited removal and found to have a credible fear of persecution, but who do not
qualify for asylum, are eligible for withholding of removal and CAT protection.)
Judicial Review of USCIS Adjudications
An alien may potentially challenge a USCIS decision in federal district court under the Administrative
Procedure Act (APA), which generally authorizes judicial review of federal agency decisions. The alien
(or petitioning sponsor) must show that the USCIS decision is a “final agency action for which there is no
other adequate remedy,” meaning that it is not subject to further administrative review and conclusively
determines the alien’s legal rights and obligations. Applying this standard, some federal courts have held
that a USCIS decision is not final agency action if the alien is subsequently placed in formal removal
proceedings and can renew the denied application (e.g., an adjustment of status application) in those
proceedings. In these circumstances, the alien may challenge the denial of the application only by filing a
petition for review of a final order of removal in the federal courts of appeals.
Although a USCIS decision may constitute final agency action in some situations, INA § 242(a)(2)(B)
precludes judicial review of (1) “any judgment regarding the granting of” certain forms of discretionary
relief (including adjustment of status); or (2) “any other decision or action” specified by statute to be in
the discretion of the Secretary of Homeland Security (e.g., a visa revocation). Until the Supreme Court
decided Patel v. Garland in May 2022, lower courts had disagreed over whether a “judgment” immune to
judicial review under the first prong of the statute refers only to the discretionary decision whether to
grant relief, and whether the statute preserves review of nondiscretionary questions, including threshold
determinations of statutory eligibility and factual findings. In Patel, the Supreme Court resolved this
dispute, holding that INA § 242(a)(2)(B) bars judicial review of any determination relating to the grant or
denial of discretionary relief, including factual findings made in the course of adjudicating the
application.

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INA § 242(a)(2)(D) provides that, notwithstanding the § 242(a)(2)(B) bars, courts retain jurisdiction to
review constitutional claims or questions of law raised in a petition for review of a final order of removal.
Courts have recognized that this exception does not apply to review of USCIS determinations, which
occur outside of removal proceedings.
Separately, the APA bars judicial review if a federal agency action “is committed to agency discretion by
law.” This bar applies when there is no judicially manageable standard to review an agency decision.
Federal courts, on occasion, have applied this provision when dismissing legal challenges to USCIS
actions, including, for instance, the agency’s adjudication of certain types of visa petitions.
If a district court has jurisdiction to review a USCIS decision, the APA specifies the grounds upon which
the court may set aside the agency’s action, including, among other things, if it is “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law,” violates constitutional protections,
exceeds statutory authority, or fails to comply with procedural requirements. The APA, which defines
“agency action” to include an agency’s “failure to act,” also authorizes courts to “compel agency action
unlawfully withheld or unreasonably delayed.” Based on this authority (or, in the alternative, the
Mandamus Act), some courts have reviewed claims that USCIS unreasonably delayed an adjudication. In
contrast, some courts have held that the pace at which USCIS adjudicates applications is not subject to
judicial review.
Immigration Enforcement and Related Activities
While USCIS is mainly responsible for adjudicating benefit requests, the agency also has some
immigration enforcement and related functions. For example, USCIS asylum officers conduct “credible
fear” interviews to determine whether aliens who are apprehended at the border and placed in expedited
removal proceedings, and who express a fear of returning to a particular country, are potentially eligible
for asylum and related protections. USCIS asylum officers also conduct “reasonable fear” screenings to
determine whether aliens who are apprehended in the United States after being previously removed, and
who express a fear of return to the country of removal, might qualify for withholding of removal and
Convention Against Torture (CAT) protection, which have higher standards of proof than asylum.
USCIS may also commence formal removal proceedings in some cases. Designated immigration officers,
including supervisory adjudication and asylum officers, may issue a Notice to Appear (NTA), the
charging document that commences formal removal proceedings against a removable alien. As laid out in
a 2011 memorandum, which is currently binding, USCIS officials must issue an NTA in certain cases
where federal statute or regulations require initiation of formal removal proceedings, such as upon the
agency’s referral of an affirmative asylum application for formal removal proceedings; its termination of
asylum or refugee status; its determination that an alien has a credible fear of persecution; or its denial of
a removable alien’s TPS application. USCIS policy also requires NTA issuance when a case raises
national security concerns or an applicant has committed fraud (even if the application is denied on a
basis other than fraud). USCIS’s guidance also permits issuance of an NTA with respect to naturalization
applicants who are subject to removal (e.g., because of a criminal offense). Additionally, USCIS refers
cases to ICE—the DHS component responsible for interior immigration enforcement—for possible NTA
issuance in some circumstances, including if the alien committed certain types of crimes.
USCIS also has some responsibilities relating to investigations and the sharing of information. For
instance, the agency’s Fraud Detection and National Security Directorate investigates applicants who
engage in immigration benefit fraud or raise national security or public safety concerns, and it may refer
cases to ICE for potential criminal investigations. The Immigration Records and Identity Services
Directorate may provide identity, employment, and immigration-related information about aliens to other
agencies pursuant to data-sharing agreements.

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Author Information

Hillel R. Smith

Legislative Attorney

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