News

Washington, D.C., January 25, 2022: At a time of notorious backlogs and delays, U.S. Citizenship & Immigration Services has decided to issue new guidance relating to the criteria that it uses for approving discretionary requests for expedited processing. The criteria are now available in the USCIS Policy Manual, Volume 1, Part A, Public Services, Chapter 5, Requests to Expedite Applications or Petitions [1 USCIS-PM A.5] and the uscis.gov website:

1. 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 to:
Timely file the benefit request, or Timely respond to any requests for additional evidence;

A company can demonstrate that it would suffer a severe financial loss if it is at risk of failing, losing a critical contract, or having to lay off other employees. For example, a medical office may suffer severe financial loss if a gap in a doctor’s employment authorization would require the medical practice to lay off its medical assistants.

Job loss may be sufficient to establish severe financial loss for a person, depending on the individual circumstances. For example, the inability to travel for work that would result in job loss might warrant expedited treatment. The need to obtain employment authorization by itself, without evidence of other compelling factors, does not warrant expedited treatment. In addition, severe financial loss may also be established where failure to expedite would result in a loss of critical public benefits or services.

2. Emergencies and urgent humanitarian reasons

In the context of an expedite request, humanitarian reasons are those related to human welfare. Examples may include, but are not limited to, illness, disability, extreme living conditions, death in the family, or a critical need to travel to obtain medical treatment in a limited amount of time.

An emergency may include an urgent need to expedite employment authorization for healthcare workers during a national emergency such as the COVID-19 pandemic. Additionally, an expedite request may be considered under this criterion in instances where a vulnerable person’s safety may be compromised due to a breach of confidentiality if there is a delay in processing the benefit application. A benefit requestor’s desire to travel for vacation does not, in general, meet the definition of an emergency.

3. Nonprofit organization (as designated by the Internal Revenue Service) whose request is in furtherance of the cultural or social interests of the United States

A nonprofit organization seeking to expedite a beneficiary’s benefit request must demonstrate an urgent need to expedite the case based on the beneficiary’s specific role within the nonprofit in furthering cultural or social interests (as opposed to the organization’s role in furthering social or cultural interests). Examples may include a medical professional urgently needed for medical research related to a specific social U.S. interest (such as the COVID-19 pandemic or other socially impactful research or project) or a university professor urgently needed to participate in a specific and imminent cultural program. Another example is a religious organization that urgently needs a beneficiary’s specific services and skill set to continue a vital social outreach program. In such instances, the religious organization must articulate why the respective beneficiary is specifically needed, as opposed to pointing to a general shortage alone.

4. U.S. government interests

Such cases identified as urgent by federal agencies such as the U.S. Department of Defense, U.S. Department of Labor, National Labor Relations Board, Equal Opportunity Commission, U.S. Department of Justice, U.S. Department of State, U.S. Department of Homeland Security, or other public safety or national security interests); or U.S. government interests may include, but are not limited to, cases identified as urgent by other government agencies, including labor and employment agencies, and public safety or national security interests.

For expedite requests made by a federal agency, involving other public safety or national security interests, the national interest need must be immediate and substantive. If the need for the action is not immediate, expedited processing is not warranted. A substantive need does not mean that a delay would pose existential or irreversible consequences to the national interests but rather that the case at hand is of a scale or a uniqueness that requires immediate action to prevent real and serious harm to U.S. interests.

Expedite requests from government agencies (federal, state, or local) must be made by a senior-level official of that agency. If the request relates to employment authorization, the request must demonstrate that the need for a person to be employment-authorized is mission-critical and goes beyond a general need to retain a particular worker or person. Examples include, but are not limited to, a noncitizen victim or witness cooperating with a federal, state, or local agency who is in need of employment authorization because the respective agency is seeking back pay or reinstatement in court proceedings.

5. Clear USCIS error

USCIS warns that: “Not every circumstance that fits in one of these categories will result in expedited processing.”

6. Procedures

USCIS generally does not consider expedite requests for petitions and applications where Premium Processing Service is available.

USCIS indicates that an expedited processing request are to be made by contacting USCIS by telephone ( or by using the online “Ask Emma” chat system on the uscis.gov website. USCIS also states that expedited processing requests must to be made after the petition or application is filed with USCIS and a receipt notice is issued. For example, the USCIS Contact Center or Ask Emma chat will not be able to accept an expedited request without a USCIS receipt number.

Finally, USCIS warns that delays may apply where the benefit is ancillary to a primary application or petition that is still pending. In such cases, requesting to expedite the primary application or petition (such as an Application to Extend/Change Nonimmigrant Status (Form I-539) or Petition for a Nonimmigrant Worker (Form I-129)) instead of requesting to expedite the ancillary application (such as an Application for Employment Authorization (Form I-765)) would better facilitate USCIS’ ability to process the ancillary application faster.

To increase efficiency in the review and processing of expedite requests, USCIS does not provide justification or otherwise respond regarding decisions on expedite requests.

Conclusion

Missing from this new guidance is any reasonable system for communicating with applicants who have made a request for expedited processing. The USCIS continues to offer no tracking system or email address for communications regarding expedite requests. Similarly, USCIS does not acknowledge any timeline for responding to a request for expedited processing.

Additionally, the new system makes no reference to problem solving for cases such as Reinstatement Nunc Pro Tunc or the perennial problems arising for errors occurring in Lock-Box rejection of properly filed cases.

Donoso & Partners, a leading immigration law firm based in Washington, D.C., will continue to report on developments regarding the immigration law and policy through our news section of donosolaw.com.