On June 9, the Office of the Director of United States Citizenship and Immigration Services (USCIS) issued three Policy Alerts (PAs), which continue a trend by USCIS to insert (hopefully) more reason and justice in adjudications by the agency. The PAs were issued on the following issues:
- Increasing the validity period of employment authorization card (EAD) validity from one year to two years for adjustment of status applicants (I-485) for permanent residence. The reason stated for this extension of validity period was due to the median processing time for certain adjustment applications being close to or exceeding one year. Replacement EADs will be issued, however, for the same validity period as originally issued.
- Restoring the ability of nonprofit organizations – as determined by the IRS – to request discretionary expedited review of certain petitions or applications filed with USCIS even when premium processing is available. In addition, the PA clarified when the USCIS will consider expediting requests for processing.
- Restoring prior 2013 agency guidance regarding when USCIS officers should issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID), and rescinding a restrictive 2018 USCIS policy, which advised officers that they could deny benefit requests for lack of initial evidence without first sending an RFE or NOID. The June PA noted that the change was being made to refer back to the earlier policy to “reduce barriers that may impede access to immigration benefits and ensure the agency is fairly and efficiently adjudicating immigration benefit requests.
Will we see a decline in RFEs and NOIDs issued by the agency?
That depends. The June PA encourages the issuance of RFEs and NOIDs versus a summary denial to allow applicants to correct innocent mistakes and unintentional omissions and to save both applicants and the USCIS time and money since denials under the 2018 policy resulted in inefficient use of USCIS resources.
The PA encourages USCIS to perform additional research instead of or in addition to issuing an RFE or NOID. USCIS officers are advised to check USCIS records and systems as well as other government systems and databases in addition to publicly available information, which is readily accessible, to validate assertions by applicants or corroborate facts before issuing an RFE or NOID. One of the examples provided is that an officer may verify information regarding a petitioner’s corporate structure by consulting a publicly available government website or a history of nonimmigrant stays in the U.S. via the Customs and Border Protection (CBP) data.
Of course, any company sponsor or applicant needs to look at those publicly available sites as well before filing applications or petitions to check for accuracy.
In searching for some guidance in the crystal ball, the USCIS RFE statistics reflect the following RFE rates for L-1 I-129 petitions:
RFEs Initial Denials
2015 34.3% 16.2%
2018 45.6% 20.4%
2020 54.2% 21.7%
As to H-1 B petition I-129 petitions for the same years, the RFE rates were:
RFEs Initial Denials
2015 22.3% 3.55%
2018 38.0% 14.65%
2020 28.8% 9.34%
After the 2018 policy change, we see a jump in RFEs as well as initial denials in both years for L cases. The more pressing issue is whether USCIS will provide more oversight and control over whether an RFE should be issued and if the potential internal review by USCIS will reduce the necessity for the issuance of an RFE or NOID. The standard of proof for most benefit requests submitted to USCIS is a preponderance of the evidence, which requires the applicant to show that the elements necessary for the benefit are proven more likely than not. We should certainly expect to see a reduction in initial denials.
What business reasons might qualify for an expedite of an application or petition under the PA?
The PA outlines that a business expedite request may be based on a: “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.”
To demonstrate a severe financial loss, the company may document that it is at the risk of failing, losing a critical contract, or required to lay off other employees. An example of a medical office potentially suffering severe financial loss due to a gap in the doctor’s employment authorization requiring staff lay-offs is provided. Other examples include a loss of critical public benefits or job loss as to an individual applicant. All such requests must be documented to prove the loss and that the applicant cannot withstand the temporary financial loss that is the normal result of current processing times.
The PA also confirms that an expedite request is not normally approved when a benefit application may be filed with a premium processing request (I-907), which currently requires a filing fee of $2500 for most applicable filings.
USCIS also provides specific guidance on how to make an expedite request here. Note that a clear USCIS error may be the basis for an expedite request.
 See Requests for Evidence and Notices of Intent to Deny, PM-602-0085, issued June 3, 2013 and Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter10.5(b), PM-602-0163, issued July 13, 2018.
ABOUT THE AUTHOR
Kathleen Campbell Walker is a member of Dickinson Wright PLLC and serves as a co-chair of the Immigration Practice Group. She is a former national president and general counsel of the American Immigration Lawyers Association (AILA) and is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. She serves on the AILA Board of Governors. In 2014, she received the AILA Founder’s Award, which is awarded from time to time to the person or entity, who has had the most substantial impact on the field of immigration law or policy in the preceding period (established 1950). She has testified several times before Congress on matters of immigration policy and border security. Kathleen can be reached at 915-541-9360 or firstname.lastname@example.org.