USCIS – Policy Update – EAD,RFE, Expedite Request

The USCIS has issued policy updates to improve request for evidence (RFE) and notice of intent to deny (NOID) guidance, as well as to extend the validity period for initial and renewal employment authorization documents (EADs).

Requests for Evidence and Notices of Intent to Deny:

  • The USCIS is rescinding a July 2018 Trump administration policy that allowed officers to deny applications rather than issuing an RFE or NOID for any missing documents.
  • With this change, USCIS reverts to a 2013 policy memo that instructed officers to issue an RFE or NOID when additional evidence could potentially demonstrate eligibility for an immigration benefit.

Highlight of the 2018 Memo: The USCIS now will also be permitted to deny a case without issuing an RFE or NOID “ for failure to establish eligibility based on lack of required initial evidence.”

  • Waiver applications submitted with little to no supporting evidence
  • Cases in which the regulations, the statute, or form instructions require the submission of an official document or other evidence establishing eligibility at the time of filing and there is no submission (For example, family-based or employment-based categories where an affidavit of support (form I-864), if required, was not submitted with the application to register permanent residence or adjust status (form I-485).)

Expedited Processing:

Further guidance is provided to USCIS officers on when expedited processing may be warranted; however, USCIS considers all expedite requests on a case-by-case basis. In general, USCIS considers expedited requests for Extensions and Changes of Status based on Special Situations.

USCIS may honor expedite request if it falls under one 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.
  • Emergencies and urgent humanitarian reasons.
  • 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.
  • 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); or
  • Clear USCIS error.

USCIS updated the policy to include financial/job loss as a criterion that aids L2, H4 EAD, and I485 applications, and provided an example below. Please note that expedite requests will be accepted only if premium processing is unavailable.

A company can demonstrate that it would suffer a severe financial loss if it is at risk of failing, losing a critical contract, or required to lay off other employees. For example, a medical office may suffer severe financial loss if a gap in a doctor’s employment authorization would require the medical practice to lay off its medical assistants.

The need to obtain employment authorization, standing alone, without evidence of other compelling factors, does not warrant expedited treatment. Job loss may be sufficient to establish severe financial loss for a person, depending on the individual circumstances. For example, the inability to travel for work that would result in job loss might warrant expedited treatment.

In addition, severe financial loss may also be established where failure to expedite would result in a loss of critical public benefits.

USCIS Financial Loss Exemplification

Employment Authorization Documents:

Currently, USCIS issues Employment Authorization Documents (I 485 EADs) to adjustment applicants that are valid for one year. With this policy change, USCIS will now issue initial and renewal EADs valid for two years to adjustment applicants.

L2 and H4 EAD are not affected by this change and will continue to have a three-year validity period.

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