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USCIS Leadership Plans to Drop Gang Activity Questions from Green Card Form

Green card on American flag background

FAIR Take | May 2021

Internal sources are reporting the USCIS leadership will be taking steps to remove questions regarding an applicant’s gang activity from the form that aliens must submit to receive a green card (Form I-485). The previous administration began the process to add these questions to Form I-485 in order to supply USCIS officers with information to consider when evaluating whether an applicant merits a favorable exercise of discretion, or in simpler terms: should they be allowed to stay in the United States permanently as a lawful permanent resident (LPR)?

Adjustment of status is the term used to describe the process of a nonimmigrant alien obtaining a green card and becoming an LPR, and is a discretionary immigration benefit. Under the current framework, nonimmigrant aliens (or aliens holding temporary statuses) must adjust to LPR status in order to eventually become eligible for U.S. citizenship. Immigration officers are tasked with determining whether an alien warrants a favorable exercise of discretion on an adjustment of status application. The burden is on the applicant to demonstrate that he or she warrants a favorable exercise of discretion, and the applicant must supply relevant information to the immigration officer for that analysis.

The gang activity questions that USCIS leadership intends to remove from Form I-485 asked:

“17. Are you now or have you EVER been a member of, or associated with, a group of three or more persons who acted together in the United States or elsewhere with the aim of committing any crime?

18. Are you now or have you EVER been a member of, or associated with, a group of three or more persons who acted together in the United States or elsewhere to commit and/or attempt to commit a crime involving more than one country.”

A positive response indicating that the applicant had participated in gang activity on the I-485 would not have been dispositive. Rather, it would have provided the immigration officer information to consider whether further questioning is needed during the applicant’s interview and, ultimately, whether the application should be approved to permit the alien’s permanent residency in the United States.

Internal sources report that USCIS leadership believes that the gang activity questions serve no value to immigration officers’ deliberations, despite the serious moral and public safety concerns posed by criminal and transnational gang activities. Removing the questions, however, only reduces immigration officers’ ability to make informed decisions on discretionary green card applications and does nothing to protect the security of the American public or the integrity of the immigration system. USCIS plans to publish the form change for public comment on October 4, 2021, and implement the change in early 2022.