Kristina M. Hernandez
Updated Guidance on Expedite Criteria, RFEs & NOIDs, and EAD Validity Periods for AOS Applicants
Today USCIS issued three policy updates in the USCIS Policy Manual regarding:
Addressing the circumstances in which officers should issue RFEs and NOIDs ; and
Extending the validity period for initial and renewal employment authorization documents (EADs) for certain noncitizens with pending adjustment of status applications.
Expedited Processing Updates
The updated policy guidance clarifies criteria and circumstances under which USCIS will generally consider expedite requests. It also 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.
USCIS may expedite a benefit request if it falls under one or more of the following criteria or circumstance:
Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure: (1) to timely file the benefit request; or (2) to timely respond to any requests for additional evidence;
Emergencies and urgent humanitarian reasons (USCIS provides an example - the requestor is gravely ill and has a critical need to travel to obtain medical treatment in a limited amount of time, or where a vulnerable person’s safety may be compromised due to a breach of confidentiality if there is a delay in processing of the benefit application);
Nonprofit organization (as designated by the Internal Revenue Service (IRS)) whose request is in furtherance of the cultural and social interests of the United States (USCIS provides an example - an organization broadcasting in regional areas to promote democratic interests);
U.S. government interests (including urgent cases for federal agencies such as the U.S. Department of Defense, U.S. Department of Labor, DHS or other public safety or national security interests). The national interest need must be immediate and substantive. If the need for the action is not immediate, expedited processing is not warranted. A substantive need does not mean that a delay would pose existential or irreversible consequences to the U.S. national interests but rather that the case at hand is of a scale or a uniqueness that requires immediate action to prevent real and serious harm to U.S. interests; OR
Clear USCIS error.
RFE & NOID Updates
In 2018 during the Trump Administration, USCIS issued guidance stating that officers may deny benefit requests for lack of initial required evidence without first sending an RFE or NOID. Now, USCIS will be returning to 2013 policy instructing officers to issue RFEs in cases involving insufficient evidence before denying cases. Further, the policy update 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. USCIS states that this policy will ensure that benefit requestors 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.
EAD Validity Updates
USCIS will increase the amount of time a grant of employment authorization is valid for applicants seeking adjustment of status under INA Section 245. Currently, USCIS issues adjustment applicants Employment Authorization Documents (EADs) that are valid for 1 year. USCIS has stated that 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.
To read the announcement from USCIS regarding the policy updates, please click here.