U.S. Citizenship and Immigration Services (USCIS) has issued a set of policy revisions aimed at reducing burdens on those eligible for U.S. immigration benefits. The changes follow a February 2, 2021 executive order in which President Biden instructed federal agencies to conduct a review of immigration regulations, policies and guidance, and eliminate barriers to the Administration’s priority of promoting legal immigration.
The new policy guidance addresses USCIS issuance of requests for evidence (RFEs) and notices of intent to deny (NOIDs), the validity period of employment authorization documents (EADs) for adjustment of status applicants, and expedite criteria for immigration benefit applications.
Return to 2013 policy on RFEs and NOIDs
The new USCIS guidance reinstates a 2013 policy in which officers are instructed to issue RFEs or NOIDs – not denials — in cases filed with initially insufficient evidence, unless there is no possibility that additional evidence would establish eligibility for the immigration benefit. The new policy replaces a 2018 USCIS policy that allowed officers to deny benefit requests outright for lack of initial evidence. In reinstating the former policy, USCIS says that companies and foreign nationals should generally be given an opportunity to correct innocent mistakes and unintentional omissions through the submission of additional evidence without needing to re-submit a full application.
Two-year EADs for most adjustment of status applicants
USCIS will now permit Employment Authorization Documents for most adjustment of status applicants to be issued for a maximum of two years, an increase from the standard one year of validity. The extension applies to all applicants applying for adjustment under Section 245 of the Immigration and Nationality Act, which includes employment-based and family-based adjustment applicants. The agency did not address the validity of adjustment of status travel document (advance parole) validity, which is still limited to one year.
Clarification of expedite criteria
In its new guidance, USCIS has also clarified criteria for whether an immigration case may be generally afforded expedited treatment due to severe financial loss. In the revised policy manual, the agency says a company seeking to expedite adjudication of a case may demonstrate severe financial loss if it is at risk of failing, losing a critical contract, or being required to lay off employees. Further, an individual may be able to demonstrate severe financial loss by establishing a job loss, but their need to obtain employment authorization alone, without other compelling factors, would not warrant expedited treatment.
The new guidance also restores the ability of certain nonprofit organizations to request expedited service even where premium processing is available for the immigration benefit sought. In other instances, expedite treatment is generally not available if premium processing is offered for the benefit.
What the new guidance means for employers and foreign nationals
The new guidance improves on prior restrictive adjudication policies, but may not offer wholesale change in some areas. Under the reinstated RFE/NOID policy, companies and foreign nationals may receive fewer outright denials on immigration benefit applications. However, the number of RFEs and NOIDs received may not decrease significantly, given that officers always have the authority to request further evidence when they determine eligibility for a benefit has not been established. USCIS’s recent reinstatement of agency deference in adjudications may prove to have more significant impact in this area, but practical implementation of the policy change within the agency may lag behind the policy announcement.
Employment- and family-based adjustment of status applicants who are granted two-year EADs under the new EAD policy may experience fewer or shorter gaps in work authorization. However, advance parole travel documents must still be renewed annually while an adjustment application is pending.
Lastly, further clarification on expedite criteria may assist companies and foreign nationals in determining how USCIS may view their request, but the agency will continue to consider expedites on a case-by-case basis. The decision to grant or deny is within the agency’s sole discretion. Expedites are typically challenging to obtain.