By: Dawn M. Lurie
On June 9, 2021 U.S. Citizenship and Immigration Services (USCIS) advised the public about its recent updates to the USCIS Policy Manual. Specifically, the USCIS updates:
- Clarify the criteria and circumstances for expedited processing
- The guidance discusses emergencies, restores benefits to non-profits, and discusses the relationship between ICE and USCIS when addressing an expedite for someone in removal;
- Address the circumstances in which officers should issue Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs)
- This rolls back the Trump Administration’s harsh guidance permitting the issuance of denials of petitions or applications requesting immigration benefits without first issuing an RFE or NOID; and
- Extend the validity period for initial and renewal employment authorization documents (EADs) for certain noncitizens with pending adjustment of status applications.
- Basically the validity period of new EADs is increased from one to two years, freeing up significant USCIS resources by decreasing the number of EAD applications, also reducing the number of related Forms I-9 reverifications.
The USCIS notice states that “these updates support Executive Order (E.O.) 14012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans” directing federal agencies to identify strategies that promote inclusion and identify barriers that impede access to immigration benefits, issued by President Biden on Feb. 2, 2021.”
The USCIS Public Engagement office issued an excellent summary of the Policy manual update so we are including its announcement below:
Benefit requestors may request USCIS to expedite the adjudication of their immigration benefit requests, such as applications or petitions. USCIS considers all expedite requests on a case-by-case basis. We are updating our policy guidance, primarily in Volume 1, Part A of the Policy Manual, to clarify the relevant criteria and circumstances.
- Clarifies what USCIS considers an emergency situation, such as a critical need to travel to obtain medical treatment in a limited amount of time.
- Restores the ability for a nonprofit organization (as designated by the Internal Revenue Service) 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 expedited processing of applications for noncitizens pending removal or in removal proceedings is coordinated between USCIS and U.S. Immigration and Customs Enforcement.
RFEs and NOIDs
In 2013, USCIS published guidance instructing officers to issue RFEs in cases involving insufficient evidence before denying such cases, unless the officer determined that there was no possibility that the benefit requestor could overcome a finding of ineligibility by submitting additional evidence. In 2018, USCIS rescinded this “no possibility” policy and issued guidance stating that officers may deny benefit requests for lack of initial required evidence without first sending an RFE or NOID.
USCIS is returning to the principles of the 2013 policy and issuing guidance in Volume 1, Part E, Chapter 6 of the Policy Manual.
- 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.
USCIS will increase the current one-year validity period on initial and renewal EADs to two years for certain adjustment of status applicants. This will significantly lessen the number of employment authorization requests we receive, allow us to shift limited resources to other priority areas, and ease an unnecessary burden on individuals waiting on the adjudication of their adjustment of status applications. Additional information can be found in Volume 10, Part B, Chapter 4 of the Policy Manual.
- Effective immediately upon publication, initial and renewal EADs for eligible adjustment applicants will be valid for two years, instead of one year.
For additional information on these updates, see the USCIS Policy Manual. These policy updates are not intended to, do not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter. Likewise, no limitations are placed by this guidance on the otherwise lawful enforcement or litigation prerogatives of DHS.
These actions are in line with President Biden’ promise to reduce the bureaucratic barriers associated with immigration processing. This is also reflective of what USCIS Director nominee stated at her May 26 nomination hearing before the Senate Judiciary Committee, “My most immediate responsibilities, if confirmed, will be to return the agency to firm solvency, resolve dramatically increasing processing times and backlogs, and utilize 21st-century tools.”
Seyfarth applauds these steps in the right direction.