As many of you know during the Trump era, there were many policy changes that were implemented, which increased issuances of Request for Evidence (RFE), Notice of Intent to Deny(NOID) for all kinds of applications. Also, the processing times have increased significantly for many of the Green Card related forms.
USCIS as part of the Biden’s Executive Order to restore faith in legal immigration, did a press release yesterday that includes policy changes related to EAD duration for Adjustment of Status(AOS) applications, issuing RFEs & NOIDs, including changes to expedite criteria. In this article we summarize all those details.
USCIS press release included three main things as listed below.
- Changes to Policy related to issuance of RFE, NOID
- EAD validity increase from 1 to 2 years for AOS applications
- Changes to USCIS Expedite Processing Criteria
Let’s look at each of these in detail
Background – previous USCIS Policy on RFE/ NOID : USCIS issued a policy related to issuance of RFE, NOID in July 2018 during Trump administration that gave full discretion to USCIS adjudicator. As per that 2018 policy, USICS officer had full discretion to deny a petition without issuing RFE or NOID for a petition and directly deny a petition when initial required evidence/documents for the petition/ case are missing or does not establish eligibility. This guidance applied to all petitions filed with USCIS starting from Sep 2018 until today. Check Official USCIS RFE NOID Policy Guidance from Jul 2018
Updated USCIS Policy : As per the new guidance from USCIS, they are reversing the Trump era policy and getting the guidance back to original USCIS RFE & NOID policy from 2013. As per the revised policy, below is what it means
- USCIS officers cannot deny a petition or application directly without properly justifying the same. They cannot deny because the application lacked initial/ basic evidence required for the application.
- USCIS Officers are instructed to issue Request for Evidence (RFE) or Notice of Intent to Deny(NOID), if they find any missing evidence that is required for the petition. This includes, even the initial evidence that are mandatory to meet the basic requirements.
- USCIS officers should not just issue unnecessary RFEs or NOID if the submitted evidence meets the requirements for the application
- During adjudication of any petition or application, if USCIS officer finds that the applicant can overcome any gaps in evidence or proof to give approval, then they would issue an RFE or NOID asking for the same. This way, they give an option for user to submit evidence.
- The whole idea behind this policy change is to make sure innocent mistakes or errors that are done during filing are not penalized to extreme.
- Below is the actual screenshot of the policy change. Check Official Policy Change Document
EAD validity increase from 1 to 2 years for AOS applications
Background – Current State : As part of the Green Card process, non-immigrant visa holders living in US file for Adjustment of Status(AOS) when their priority date becomes current. This is based on guidance given by USCIS regarding Dates of Filing or Final Action Dates and what to use in each of the month. When AOS application is filed, applicant also apply for I-765 form for Employment Authorization Document (EAD) and Advance Parole(AP) for Travel permission.
For FY 2020, USCIS received about 370,000 AOS related EAD requests. In the past, the validity of the EAD that was filed with AOS application used to be given for 1 year.
Due to the very long processing times of AOS applications, many of these AOS applicants need to wait for more than a year and apply for EAD second time before they get their Green Card. It is unnecessary burden for USCIS.
Updated USCIS Policy :
To address burden to USCIS, they are changing the AOS related EAD validity to below:
- USCIS is increasing the validity EADs from one year to 2 years for EAD applications filed with AOS.
- This EAD validity change is applicable to new EAD and renewal of EADs filed with AOS.
- This change is only for AOS EAD (Category Code C09) and does not apply to other USCIS EAD Category Codes
- Below is the actual guidance screenshot from the updated Official USCIS policy memo.
Changes to USCIS Expedite Processing Criteria
Background – Current State : USCIS has Premium Processing option for certain forms that allows applicants to get decision within 15 days like for H1B Visa by paying certain. 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 load and the service centre.
In cases, where there is no premium processing, you can make an Expedite Request with USCIS, if you meet certain criteria for faster processing. USCIS on a case by case basis has discretion to process them in expedited fashion. 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.
Updated USCIS Policy :
In addition to above expedite criteria, they are adding a new criteria as listed below
- Nonprofit Organization’s requests, where they are focused towards development of cultural and social interests of the United States.
The organization seeking the expedited request has to be designated by IRS as non-profit to use this criteria. Any of these non-profit organizations, even if they have premium processing available for the forms they filed, they can still request the expedite processing without paying fee for getting decision faster. Below is screenshot of the USCIS Official Policy memo guidance.
When are these Policy Changes Effective ?
All the USCIS Policy changes described above are effective immediately. Meaning, they are effective from June 9th, 2021. If you had anything that was pending, it is very likely that the policy guidance will apply to them as well.
What do you think of the policy changes by USCIS ? Share your thoughts in comments below