On August 19, U.S. Citizenship and Immigration Services (USCIS) officially revised its Policy Manual to introduce a new discretionary factor in tis adjudication process. This factor is the consideration of whether applicants have endorsed, promoted, or espoused anti‑American ideologies, antisemitic views, or supported terrorist organizations. This includes expanded social media vetting, and officers are directed to treat any indication of such views as an “overwhelmingly negative factor” in discretionary decision-making
While “anti‑American” is not clearly defined, USCIS refers adjudicators to longstanding statutory bars against associations with communism, totalitarianism, anarchism, or groups advocating violence or the overthrow of government. However, USCIS also leaves broad room for interpretation. Discretionary review applies after basic eligibility is established and involves a comprehensive balance of favorable and unfavorable factors under the “totality of the circumstances.” The policy explicitly states that ideological concerns now factor heavily into that balance.
Scope & Impact on EB‑5 and Other Discretionary Benefits
The update applies to a wide range of discretionary benefits, including parole, adjustment of status, EADs (e.g., H‑4, F‑1 OPT), and EB‑5 investor petitions, particularly where adjudicators must assess fraud, misrepresentation, threats to national interest, or criminal misuse. While many employment-based visas typically involve less discretion, EB‑5 cases often entail discretionary assessments tied to economic benefit and integrity of the program, making them subject to these new discretionary evaluations.
How USCIS Views “Anti‑American” Conduct
Though unspecified, “anti‑Americanism” may encompass online content praising terrorist group, such as Hamas or Hezbollah, Holocaust denial, calls for violent action against the U.S., or broader expressions of hostility toward American institutions, or even patterns of social media activity. Some fear that officers may interpret legitimate political expression or criticism of U.S. policy, especially on issues like Israel and Gaza, as evidence of “anti‑American” sentiment.
What EB‑5 Investors Should Do
For EB‑5 investors navigating this new landscape, proactive preparation is essential.
- Audit and clean up your social media presence, including public posts, affiliations, views, and group memberships. Remove or clarify content that might be misconstrued, including satire or criticism taken out of context.
- Document and provide context for any past speech or affiliations. Save explanations that clearly frame your views or posts.
- Ensure full compliance with your filing—particularly regarding source of funds, project legitimacy, and adherence to investment requirements.
- Expect RFEs or extended scrutiny—especially regarding ideological considerations. Be ready to respond promptly and transparently.
- Work with experienced immigration counsel who understand discretionary review nuances and can craft strong evidence of your contributions to the U.S.
USCIS has reaffirmed that immigration benefits are privileges, not rights, allowing ideological considerations to shape approval outcomes. With the policy effective immediately and applying to both new and pending cases as of August 19, EB‑5 applicants must adapt to a more sensitive adjudication environment.
By carefully managing public personas and presenting a clean, context-rich application, EB‑5 investors can reduce risks and demonstrate that they support, not undermine, American values of prosperity and rule of law.
Please note that the above article is intended for informational purposes only. Anyone that has a specific question pertaining to anti-American conduct and its impact on an immigration petition should contact an experienced immigration attorney.
