Matter of Arai and Adjustment Discretion
Matter of Arai, 13 I&N Dec. 494 (BIA 1970), is the foundational Board of Immigration Appeals decision explaining how discretion should be exercised in adjustment-of-status cases. The Board rejected an approach that effectively required every adjustment applicant to establish extraordinary equities. Instead, adjustment must be evaluated individually. When adverse factors exist, favorable equities may need to offset them. In the absence of adverse factors, adjustment ordinarily should be granted, although the decision remains discretionary.
What did Matter of Arai hold?
The Board expressly recognized that INA §245 gives the government discretionary authority. An applicant must establish both legal eligibility and that the case warrants favorable discretion.
The case
The respondent in Arai had entered the United States as a visitor and later remained beyond the authorized period.
He sought adjustment based on employment for which labor certification had been issued.
The immigration judge found him statutorily eligible but denied adjustment in discretion because the applicant had not demonstrated unusual equities under the earlier approach of Matter of Ortiz-Prieto.
The BIA disagreed with that framework and concluded that requiring extraordinary equities in every adjustment case was too demanding.
The Board held that adjustment cases should not begin with a presumption that an applicant must demonstrate exceptional equities merely because adjustment is discretionary.
Adjustment must be decided individually
Arai cautioned against rigid formulas for adjustment discretion.
The adjudicator should instead consider:
- The complete immigration history;
- The seriousness of any negative conduct;
- Family ties;
- Length and character of residence;
- Employment history;
- Hardship;
- Community ties;
- Rehabilitation where relevant;
- Humanitarian circumstances; and
- The totality of the record.
The importance of favorable evidence depends in part on the nature and seriousness of the adverse factors that must be overcome.
Adverse factors
Arai did not create an exhaustive list of adverse adjustment factors.
Depending on the case, negative factors can include:
- Immigration violations;
- Unauthorized employment;
- Fraud or misrepresentation;
- Criminal conduct;
- Repeated immigration violations;
- Failure to comply with prior immigration orders;
- False statements to immigration officials;
- Serious adverse law-enforcement information;
- Abuse of immigration benefits; and
- Other conduct bearing on whether permanent residence should be granted.
Conduct that Congress has exempted from a particular adjustment bar may still require separate analysis if USCIS lawfully treats the underlying circumstances as relevant to discretion.
Favorable equities
Arai specifically identified favorable considerations such as:
- Family ties;
- Hardship;
- Length of residence in the United States; and
- Other positive circumstances.
Modern adjustment adjudication can also consider:
- Lawful employment;
- Payment of taxes;
- Community service;
- Education;
- Care for U.S. citizen or LPR relatives;
- Military family ties;
- Rehabilitation;
- Evidence of good character;
- Medical or humanitarian circumstances; and
- Compliance with immigration law following earlier violations.
When are unusual or outstanding equities necessary?
Arai does not state that every applicant with any adverse factor must automatically demonstrate extraordinary equities.
The decision says that when adverse factors are present, it may be necessary to offset them with unusual or even outstanding equities.
The practical analysis therefore asks:
- How serious is the adverse factor?
- How recent is it?
- Was it isolated or repeated?
- Has the applicant accepted responsibility where appropriate?
- Is rehabilitation relevant and documented?
- How strong are the positive equities?
- Are the positive factors independently documented?
- What would the total record look like to an adjudicator?
Arai establishes a balancing approach rather than a mechanical point system.
What if there are no adverse factors?
Arai's most applicant-favorable principle is that, in the absence of adverse factors, adjustment ordinarily should be granted.
That does not mean approval is automatic.
The applicant must still prove:
- Statutory adjustment eligibility;
- Immigrant classification;
- Visa availability where required;
- Admissibility;
- Any required affidavit of support;
- Medical eligibility;
- Continuing eligibility through adjudication; and
- All other applicable requirements.
Arai and modern USCIS policy
USCIS continues to cite Arai in its adjustment discretion framework.
The USCIS Policy Manual instructs officers to consider the totality of the circumstances and weigh positive factors against negative factors.
Modern USCIS discretion analysis can examine:
- Conduct;
- Character;
- Family ties;
- Lawful residence;
- Immigration history;
- Employment;
- Community involvement;
- Humanitarian concerns;
- Public-safety considerations; and
- Other relevant circumstances.
USCIS still cites the decision for the proposition that adjustment discretion requires individualized balancing rather than automatic denial whenever an adverse circumstance exists.
Statutory bar versus discretionary factor
These are different analytical questions.
| Issue | Question |
|---|---|
| Statutory eligibility | Does the INA permit this person to adjust? |
| Inadmissibility | Is the applicant barred from permanent residence under INA §212 unless an exception or waiver applies? |
| Discretion | Even if legally eligible and admissible, should adjustment be granted? |
Positive equities generally cannot cure a statutory bar for which Congress provided no exception. They become relevant after legal eligibility is established or within a waiver standard that expressly permits discretionary consideration.
Unauthorized employment and discretion
An immediate relative may be exempt from the ordinary unauthorized-employment adjustment bar.
That statutory exemption means the unauthorized employment does not automatically make the person ineligible under that provision.
But the complete history can still matter when USCIS performs the separate discretionary analysis.
The response should therefore distinguish:
- Whether Congress exempted the applicant from the statutory bar;
- Whether the conduct involved aggravating circumstances;
- Whether there was fraud or false documentation;
- Whether taxes were properly reported; and
- What positive equities support favorable discretion.
Criminal conduct and discretion
An arrest or dismissed criminal charge may fail to establish statutory criminal inadmissibility but still become relevant to discretion if USCIS has reliable evidence of the underlying conduct.
The applicant may need to present:
- Certified disposition;
- Police records where relevant;
- Evidence rebutting inaccurate allegations;
- Rehabilitation;
- Passage of time;
- Compliance with court requirements;
- Character evidence; and
- Strong countervailing equities.
Misrepresentation and discretion
If the applicant is actually inadmissible under INA §212(a)(6)(C)(i), favorable discretion alone cannot erase the inadmissibility ground.
The proper sequence is:
- Determine whether the alleged misrepresentation occurred;
- Determine whether every statutory element is satisfied;
- Determine whether a waiver is required and available;
- Establish the waiver requirements; and
- Address favorable discretion for the waiver and adjustment.
Arai governs adjustment discretion. It does not create authority to forgive an inadmissibility ground Congress has not otherwise waived.
Discretion at the interview
An adjustment interview can become the central factual record for discretionary adjudication.
Applicants should be prepared to address:
- Prior immigration violations;
- Criminal history;
- Prior false statements;
- Employment history;
- Family circumstances;
- Rehabilitation;
- Changed behavior;
- Humanitarian factors; and
- Any negative facts identified in the Form I-485 record.
Discretion in an RFE or NOID
Where USCIS raises discretionary concerns, the response should not merely repeat that the applicant is statutorily eligible.
A persuasive record should:
- Identify each adverse factor;
- Correct inaccurate allegations;
- Explain context;
- Document rehabilitation where appropriate;
- Present favorable equities;
- Explain why the equities outweigh the adverse factors; and
- Connect the analysis to Arai and current USCIS policy.
Example: no meaningful adverse factors
An applicant establishes every statutory requirement and has no significant adverse immigration, criminal or credibility history. Under Arai, the applicant ordinarily should not be required to prove extraordinary equities merely because adjustment is technically discretionary.
Example: serious adverse history
An applicant is legally eligible for adjustment but has a significant history of immigration violations and other adverse conduct that does not independently create a statutory bar. Arai permits the adjudicator to require substantial countervailing equities before granting adjustment in discretion.
Arai discretionary evidence checklist
- Identify every adverse factor.
- Separate statutory bars from discretionary concerns.
- Correct inaccurate government allegations.
- Document family ties.
- Document hardship.
- Document lawful residence.
- Document employment history.
- Document tax compliance.
- Document community involvement.
- Document rehabilitation.
- Document medical or humanitarian factors.
- Provide detailed declarations.
- Address accountability where appropriate.
- Explain why favorable factors outweigh negative factors.
- Do not claim extraordinary equities are required when the record contains no adverse factors.
Common Arai mistakes
Treating Eligibility as Approval
The applicant proves statutory eligibility but ignores adjustment discretion.
Demanding Extraordinary Equities in Every Case
Arai rejected an overly demanding universal standard.
Using Equities to Cure Ineligibility
Positive factors are offered as a substitute for satisfying a statutory requirement or obtaining a required waiver.
Ignoring the Adverse Facts
The filing contains extensive positive evidence but never addresses the government's central concern.
Submitting Generic Character Letters
Letters contain praise but little factual information demonstrating rehabilitation, responsibility or community contribution.
Failing to Explain the Balance
The exhibits are submitted without showing why the totality of the circumstances supports favorable discretion.
Primary authorities
Related INA245.com guides
Frequently asked questions
What is Matter of Arai?
It is a 1970 BIA precedent establishing a foundational framework for exercising discretion in adjustment-of-status cases.
Does every applicant need outstanding equities?
No. Arai rejected that approach. Outstanding equities may be necessary when significant adverse factors must be overcome.
What favorable factors did Arai identify?
The Board specifically mentioned family ties, hardship, length of residence and other favorable circumstances.
What happens if there are no adverse factors?
Arai states that adjustment ordinarily should be granted in the absence of adverse factors, while still recognizing that adjustment remains discretionary.
Can favorable equities waive inadmissibility?
Not by themselves. A separate statutory waiver or exception is required where the applicant is inadmissible.
Does USCIS still use Arai?
Yes. USCIS continues to cite Arai in its Policy Manual adjustment discretion analysis.
Matter of Arai turns adjustment discretion into an evidentiary question: identify the negative factors, document the positive equities, and show why the complete record warrants permanent residence.
The Messersmith Law Firm, P.A. represents adjustment applicants in discretionary cases involving immigration violations, criminal history, misrepresentation allegations, humanitarian factors, RFEs, NOIDs and complex Form I-485 adjudication.
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