USCIS Implements Stricter Expedite Request Criteria

On May 10, 2019, the U.S. Citizenship and Immigration Services (USCIS) updated the Adjudicator’s Field Manual (AFM) to reduce the circumstances under which the USCIS will consider granting a case expedited treatment. In general, the USCIS has the authority to grant an expedite request on an application or petition that is not eligible for premium processing service. The USCIS lists several criteria that can be used as a basis to make an expedite request, and then uses its discretion on a case-by-case bases to determine whether to grant the request.

Previous Expedite Criteria

Until recently, the USCIS allowed an expedite request to be submitted based on any of the following:

1) Severe financial loss to company or person

2) Emergency situation

3) Humanitarian reasons

4) Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States

5) Department of Defense or national interest situation

6) USCIS error

7) Compelling interest of USCIS

The USCIS historically has been reluctant to grant expedite requests, and has tended to do so only when presented with a compelling reason and strong supporting evidence. But the criteria for at least requesting the expedited service had been relatively broad and flexible, at least allowing the USCIS to consider the request in a wide range of possible time-sensitive scenarios.

Updated Policy Makes Obtaining Expedited Service Even Harder

As has long been the case, the USCIS will not consider an expedite request if premium-processing service is available. What has changed by the update to the AFM is that the eligibility criteria have been reduced, and it implies that expedite requests will be reviewed even more skeptically than in years past. The updated list allows for consideration of an expedite request only based on the following:

1) Urgent humanitarian reasons

2) Compelling U.S. Government interests (such as urgent cases for the Department of Defense or Department of Homeland Security, or other public safety or national security interests)

3) Clear USCIS error

4) 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: (a) to file the benefit request or the request to expedite in a reasonable timeframe; or (b) to respond to any requests for additional evidence in a reasonably timely manner.

Notably, the USCIS has made it more difficult for a company or a person to be granted an expedite request based on severe financial loss. In footnotes, the USCIS defines severe financial loss to a company as: “the company would be at risk of failing.” For individuals, USCIS states: “The need to obtain employment authorization or student status, standing alone, without evidence of other compelling factors, does not warrant expedited treatment.” Additionally, USCIS states: “all expedite requests claiming severe financial loss …” must document and establish the loss and “… that the requestor is not able to withstand the temporary financial loss that is a natural result of normal processing times.”

Conclusion

Under the Trump Administration, the USCIS continues to enact policies that are detrimental to foreign nationals, U.S. citizens sponsoring family members, and employers to whom the agency is supposed to be providing services. While it is still possible to submit an expedite request under the right circumstances, this move by the USCIS inevitably will limit options for some stakeholders who have truly legitimate needs for expedited processing.

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