8.13.21

The U.S. Citizenship and Immigration Services recently took action to update some of its policies. The changes evidence the Biden Administration’s positive view of immigration and its plans to make the operation of the immigration system more efficient and fair, and to increase access to those in need of services.

According to a statement issued by Alejandro N. Mayorkas, Secretary of the U.S. Department of Homeland Security, “We 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.”

Acting USCIS Director Tracy Renaud also emphasized that the purpose of the policy changes was to make it easier for foreign nationals to enter the country legally:

These 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 …USCIS is committed to promoting policies and procedures that ensure we operate in a fair, efficient, and humane manner that reflects America’s heritage as a land of opportunity for those who seek it.

The USCIS is the branch of the U.S. Department of Homeland Security that adjudicates petitions and applications.

Here are the specifics:

Expedited processing

The USCIS has always offered the opportunity for an employer petitioner or applicant to request that a petition or application be expedited. However, the policy provides further guidance on the grounds for expedited action:

  • 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.

  • The request is made by a nonprofit organization (as designated by the Internal Revenue Service) in furtherance of the cultural and social interests of the United States.

  • The request will advance U.S. government interests (including urgent cases for federal agencies such as the U.S. Department of Defense, the U.S. Department of Labor, the DHS, or other public safety or national security interests).

  • Expedited action is needed because of clear error by the USCIS.

Requests for Evidence and Notices of Intent to Deny

During the Obama Administration, the USCIS rarely denied a petition or application without first giving the petitioner or applicant an opportunity to respond to its concerns. This was done through issuance of a Request for Evidence or a Notice of Intent to Deny.

The Trump Administration in July 2018 issued a memorandum encouraging USCIS officers to more readily deny petitions and applications without first issuing an RFE or NOID.

The Biden Administration policy update indicates that the USCIS will return to Obama-era practice. As the agency announced, it “is returning to the adjudicative principles of a June 2013 memo that instructed agency officers to issue an RFE or NOID when additional evidence could potentially demonstrate eligibility for an immigration benefit.”

Employment Authorization Documents

Employment Authorization Documents may be applied for in various circumstances and are generally valid for one year. In the case of applicants for adjustment of status to permanent resident, however, the applications were usually taking more than one year to approve.

The policy update lengthens the validity period of an EAD to two years for applicants for adjustment of status to a permanent resident. This longer validity period applies to both initial and renewal EAD applications.

The extension of the validity period will benefit both the applicant and the USCIS – fewer EAD applications will need to be filed and therefore adjudicated by the USCIS, allowing the USCIS “to shift limited resources to other priority areas.”

If you have questions about these changes, please contact any member of Constangy’s Immigration Practice Group.

For a printer-friendly copy, click here.

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