On Wednesday, June 9, 2021, the U.S. Citizenship and Immigration Services (USCIS) announced new, official policy updates to be included in their Policy Manual. The USCIS Policy Manual is an internal guidance manual for examiners to adjudicate eligibility for immigration benefits. This announcement came with a statement from Alejandro Mayorkas, the Secretary of Homeland Security. Secretary Mayorkas confirmed that “[w]e are taking action to eliminate policies that fail to promote access to the legal immigration system, and will continue to make improvements that help individuals navigate the path to citizenship, and that modernize our immigration system.” USCIS Director Tracy Renaud echoed this sentiment stating that “[t]hese policy measures are consistent with the Biden-Harris administration's priorities to eliminate unnecessary barriers to our nation’s legal immigration system and reduce burdens on noncitizens who may be eligible for immigration benefits.”

The specific policy updates are below and are welcomed by individuals and businesses alike that depend on a reliable system for legal immigration to the United States.

Expedited Processing

Expedited processing for pending immigration benefits has always been possible. With this updated policy, applicants for immigration benefits and USCIS adjudicating officers now have further guidance as to when expedited processing may be warranted. Expedite criteria now listed in the Policy Manual include the following:

• 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;

• Requests from nonprofit organization (as designated by the Internal Revenue Service (IRS)) 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.

With the exception of requests from nonprofit organizations, this updated guidance also confirms that expedite requests will not be considered for cases where premium processing is available, which is unfortunate since the premium processing fee is $2,500.

Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs)

USCIS is returning to adjudication standards of a previous June 2013 memo instructing officers to issue a request for evidence (RFE) or notice of intent to deny (NOID) when additional evidence could potentially demonstrate eligibility for an immigration benefit. By taking this action, USCIS is also rescinding a July 2018 memo that officers the authority to deny outright certain immigration petitions or applications without first issuing an RFE or NOID.

It is unclear whether this provision will have a practical impact on case adjudications at USCIS. It has been very uncommon for USCIS to deny a petition or application without first issuing an RFE or a NOID.

Employment Authorization Documents (EAD)

Finally, this new policy guidance increases the validity period of employment authorization documents (EADs) for adjustment of status applicants to two years — an increase from the prior one-year validity period. This two-year validity applies to both initial and renewal EAD applications. This additional year of validity will help applicants in reducing or possibly eliminating the need to file for EAD extensions. It also helps the agency by allowing it to shift resources to other areas.

We will continue to monitor how this guidance is applied to actual cases and provide updates as needed. In the meantime, please contact your Mintz attorney with any questions.