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In 2013, USCIS published guidance stating that, before denying a case for insufficient evidence, officers were required to issue a request for evidence (RFE) unless they determined that the benefit requestor would be unable overcome a finding of ineligibility by submitting supplementary evidence. In 2018, USCIS voided this policy, issuing guidance providing that officers could deny benefit requests for lack of initial evidence without first sending an RFE or a notice of intent to deny (NOID). The 2018 policy change caused certain benefit requestors to have their immigration benefit requests denied despite the fact they would have otherwise been able to demonstrate their eligibility if provided with an opportunity to furnish additional evidence.
To remove this unnecessary barrier in the legal immigration system and to optimize the use of government immigration resources, on June 9th, 2021, USCIS changed the policy once more, reverting to the principles of the June 2013 memo concerning issuance of RFEs and NOIDs. The June 9th, 2021 guidance also outlines improvements to the process for obtaining expedited processing and employment authorization documents.
Requests for Evidence and Notices of Intent to Deny
USCIS guidance now provides that an officer should usually issue an RFE or NOID if they establish that there is a possibility the benefit requestor could overcome a finding of ineligibility for the benefit by submitting supplementary evidence. The policy also provides guidance on the circumstances and manner in which officers should issue RFEs and NOIDs, and it outlines the limited circumstances in which officers can deny a case without first issuing an RFE or NOID. Finally, the guidance describes the timeframes and options for benefit requestors to respond to RFEs and NOIDs, making the process more transparent.
Employment Authorization Documents
In the interest of improving efficiency, and given that the current median processing time for some adjustment of status applications nears or exceeds 1 year, USCIS will now issue initial and renewal EADs with a validity period of 2 years to some adjustment of status applicants (previously, these documents were only valid for 1 year).
The policy change also clarifies the circumstances under which expedited processing (a special case-by-case service USCIS provides to benefit requestors who have emergencies requiring their immigration benefits to be adjudicated more quickly than is usually possible) is warranted.
On or after June 9, 2021, USCIS may expedite a benefit request if it meets one or more of the following criteria: 1) severe financial loss to a company or person (as long as the need for urgent action is not caused by a failure on the applicant’s part to file or respond to requests for additional evidence relating to the benefit); 2) emergencies and urgent humanitarian reasons; 3) a request from a nonprofit organization (as recognized by the Internal Revenue Service (IRS)) whose request aims to further the cultural and social interests of the United States; 4) a request which falls within the scope of U.S. government interests; or 5) that demonstrates clear USCIS error.
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