USCIS Policy Updates to Improve Immigration Services
“U.S. Citizenship and Immigration Services has issued new policy updates in the USCIS Policy Manual to clarify the criteria and circumstances for expedited processing; improve request for evidence (RFE) and notice of intent to deny (NOID) guidance, and increase the validity period for initial and renewal employment authorization documents (EADs) for certain noncitizens with pending adjustment of status application”
According to Secretary of Homeland Security Alejandro N. Mayorkas:
“We are taking action to eliminate policies that fail to promote access to the legal immigration system and will continue to make improvements that help individuals navigate the path to citizenship, and that modernize our immigration system”.
USCIS as part of Biden’s Executive Order to restore faith in legal immigration issued a press release on June 9, 2021.
This press release includes policy changes related to:
- EAD duration for Adjustment of Status (AOS) applications
- Issuing RFEs & NOIDs
- Changes to expedite criteria
In this blog we will elucidate those details:
Background:
What Changed in 2018 Memo?
Previously (2013) the USCIS adjudicator was mandated to issue RFE/ NOID and there was no full power to deny directly based on their discretion. That changed in 2018.
The Old Policy Memo from 2018 Stated That:
- USCIS adjudicator has full discretion to deny a petition without issuing RFE/ NOID for a petition
- USCIS adjudicator can deny any new petition filed when initial required evidence/documents for the petition/ case are missing or does not establish eligibility
- USCIS adjudicator has full discretion to validate all the evidence/ documents submitted by checking/consulting with USCIS systems or any other government agency files, systems and databases
- Also, USCIS officers could check non-public US Government databases as well to get non-immigrant stays, info, etc.
- USCIS officers have full discretion to check for missing evidence that is required for the case and also validates the submitted evidence using all of the systems for their authenticity and can issue denials directly based on their discretion without issuing an RFE/NOID
What Was the Basis for This Policy Change?
- USCIS claimed that this policy memo was targeted to avoid people/employers from filing frivolous/ substantially incomplete applications just as a placeholder and delay the overall processing times as it wastes USCIS resources’ time
- It was not intended to penalize anyone filing it genuinely or any innocent mistakes committed by employers during filing
Why is the Policy Reverting Back to 2013?
“In order to reduce barriers that may impede access to immigration benefits and ensure the agency is fairly and efficiently adjudicating immigration benefit requests, USCIS is returning to the principles of the 2013 policy by issuing RFEs and NOIDs when additional evidence could demonstrate eligibility for an immigration benefit. This policy will ensure that benefit requestor are given an opportunity to correct innocent mistakes and unintentional omissions and will help protect both benefit requestors and the agency from expending additional resources unnecessarily”.
This guidance, contained in Volume 1 of the Policy Manual, replaces the guidance found in Chapters 10.3(f), 10.5, 10.11(b), and 11.5 of the Adjudicator’s Field Manual
and is effective immediately. The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance on the topic.3
What Are the Highlights of the Policy?
- Explains that an officer should generally issue an RFE or NOID if the officer determines there is a possibility the benefit requestor can overcome a finding of ineligibility for the benefit sought by submitting additional evidence
- Emphasizes that officers should not issue unnecessary RFEs and NOIDs, such as in cases where the officer determines the evidence already submitted establishes eligibility or ineligibility for the benefit sought
- Provides guidance on when and how officers should issue RFEs and NOIDs and the limited circumstances in which officers may deny a case without first issuing an RFE or NOID
- Explains timeframes and options for benefit requestors to respond to RFEs and NOIDs
Citation Volume 1: General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence [1 USCISPM E.6] and Chapter 9, Rendering a Decision [1 USCIS-PM E.9].
EAD Validity Increased From 1 to 2 years for AOS applications
Background:
- When an applicant applies for adjustment of status, he or she may also apply for employment authorization so that the applicant may work in the United States while waiting for a decision on the adjustment application
- Currently, USCIS issues adjustment applicants Employment Authorization Documents (EADs) that are valid for 1 year
- However, in the interest of reducing the burden on both the agency and the public, because the current median processing time for certain adjustment of status applications is close to or greater than 1 year, USCIS will now issue initial and renewal EADs to adjustment applicants that are valid for 2 years
- Replacement EADs will not be affected by this update; USCIS will continue to issue replacement EADs with the same validity dates as the original EAD
- This guidance, contained in Volume 10 of the Policy Manual, is effective immediately
- The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance
What Are the Highlights of the Policy?
Updates the validity period for initial and renewal EADs issued to applicants for adjustment of status under INA 245 from 1 year to 2 years
Citation Volume 10: Employment Authorization, Part B, Specific Categories, Chapter 4, Adjustment Applicants Under INA 245 [10 USCIS-PM B.4].
Policy memo to increase time limit on EAD during Adjustment of Status can be found here
USCIS Expedite Criteria and Circumstances
Background –
- USCIS Offers Premium Processing options for H-1B by paying an upgraded amount option
- It allows applicants to get a decision within 15 days.
- But, for most of the forms that USCIS processes, there is no option for premium processing
- USCIS can take their own time to process them and there is no SLA as well. It all depends on the caseload and the service center
- Immigration benefit requestors may request that USCIS expedite the adjudication of their benefit request (such as applications or petitions). USCIS considers all expedite requests on a case-by-case basis
USCIS is updating its policy guidance to clarify the criteria and circumstances that may warrant expediting the adjudication of a benefit request
The current common criteria for raising expedite request are:
- Severe loss to a company or person
- Urgent Humanitarian Reasons
- Compelling US Govt. interests
- USCIS Errors
Note: This update primarily affects Volume 1, Part A of the Policy Manual
The guidance contained in the Policy Manual is controlling and supersedes any related prior USCIS guidance.
What Are the Highlights of the Policy?
- Clarifies criteria and circumstances under which USCIS will generally consider expedite requests
- Restores the ability for a nonprofit organization, as determined by the Internal Revenue Service (IRS) whose request is in furtherance of the cultural and social interests of the United States, to request discretionary expedited service, even when premium processing is available for that benefit
- Clarifies that expedite processing of benefit requests for noncitizens with final orders of removal or noncitizens in removal proceedings is coordinated between USCIS and U.S. Immigration and Customs Enforcement (ICE)
Citation Volume 1: General Policies and Procedures, Part A, Public Services, Chapter 5, Requests to Expedite Applications or Petitions [1 USCIS-PM A.5].
The original USCIS Expedite Criteria and Circumstances Policy Alert can be found here
When Will these Policy Changes Be Effective?
- All the USCIS Policy changes described above are effective immediately
- Meaning, they are effective from June 9th, 2021.
To get a better idea of what your processing time will be, you can fill out this contact form and schedule your consultation with one of our attorneys, or
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