USCIS Revises Policies on RFEs, Work Permits

​On June 9, U.S. Citizenship and Immigration Services (USCIS) announced policy updates designed to reduce barriers to immigration processing.

The policy changes require that USCIS officers first issue a request for evidence (RFE) to visa applicants before denying their applications and increase the validity period for certain employment authorization documents (EADs) from one year to two years.

"These actions are in line with President [Joe] Biden's promise to reduce the bureaucratic barriers associated with immigration processing," said Dawn Lurie, senior counsel in the immigration practice group of Seyfarth Shaw's Washington, D.C., office.

Forrest Read, an attorney in the Raleigh, N.C., office of Jackson Lewis, added that "these changes will help reduce backlogs at USCIS and give some petitioners and applicants ways to avoid those backlogs."

Requests for Evidence

The new USCIS guidance reinstates a 2013 policy instructing officers to issue RFEs or notices of intent to deny—instead of denials—when cases are filed with insufficient evidence, unless there is no possibility that additional evidence would warrant an approval.

The new policy "rolls back the Trump administration's harsh guidance permitting the issuance of denials of petitions or applications … without first issuing an RFE," Lurie said.

"This meant that some petitioners or beneficiaries would not have an opportunity to fix minor errors or provide more documentation," Read said. "Instead, they would have to file motions to reopen, appeals or simply reapply."

EAD Validity

USCIS will permit EADs for most adjustment-of-status applicants to be issued for a maximum of two years, up from the standard one year of validity.

"This will free up significant USCIS resources by decreasing the number of EAD applications, and also reducing the number of related Form I-9 reverifications," Lurie said.

Not only will this reduce the number of EAD applications that must be filed, but applicants will less frequently experience gaps in employment authorization due to USCIS backlogs, Read added.

"This guidance was issued due to ongoing processing delays affecting the completion of adjustment of status applications," USCIS said. "Renewing EADs in this category is generally free, and USCIS received nearly 370,000 adjustment-related employment authorization requests in fiscal year 2020."

Reversing Trump-Era Policies

The latest revisions follow a USCIS announcement in April that rescinded a 2017 policy issued under the Trump administration that prohibited officers from deferring to prior petition approvals when adjudicating petition extension requests, even where there was no change in material facts.

RFEs increased significantly after the Trump administration dispensed with the previous deference policy. Reverting to the prior policy should decrease the number of RFEs for extensions and reduce processing times, experts agreed.