By: Joseph Barnett and Colin Gallagher
Due to the uncertainty caused by COVID-19 and the current political regime’s anti-immigration rhetoric, the ability to expedite the adjudication of an application or petition for an immigration benefit is more important than ever.
With the exception of applications or petitions that have Premium Processing Service available, USCIS will consider all expedite requests on a case-by-case basis. All expedite requests must be supported by documentary evidence, and the decision of whether to grant or deny an expedite request rests solely within the discretion of USCIS.
Please note, the granting of an expedite request does not constitute an approval of the underlying application or petition. If the expedite request is granted, this merely means that USCIS will issue a decision faster than the normal processing time.
Expedite Request Criteria
USCIS has provided the following criteria to determine whether a given case is eligible for an expedite request:
- 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 either (a) file the benefit request or the expedite request in a reasonable time frame, or (b) respond to any requests for additional evidence in a reasonably timely manner;
- Urgent humanitarian reasons;
- Compelling U.S. government interests (such as urgent cases for the Department of Defense or DHS, or other public safety or national security interests); or
- Clear USCIS error.
When attempting to prove severe financial loss to a company or person, documentation must be submitted to show that the requestor is unable to withstand the financial loss that is the natural result of normal processing times. It is important to note that for an expedite request related to the need to obtain employment authorization or student status, the need to obtain employment authorization or student status alone, without additional compelling factors, will not warrant expedited treatment.
The following are a few best practices our firm has employed to increase the chance of success for expedite requests:
- Back up all assertions with credible, objective documentary evidence
- The requestor must show USCIS how a given case satisfies the criteria outlined above, as opposed to merely asserting eligibility.
- Pull on the heartstrings of USCIS
- Expedite requests that are granted are often those that use a “feel good” story to supplement the documentary evidence submitted.
- Provide letters of support from local and national interested parties
- Particularly relevant in satisfying the U.S. government interest criterion mentioned above, letters of support from U.S. Representatives or Senators, interested state or federal agencies, and/or local economic development entities can be beneficial in helping an expedite request be granted.
Our firm has a long history of success with expedite requests. A recent example relates to fifteen pending Forms I-526 associated with a Job Creating Entity which had used EB-5 capital to develop, construct, and operate an Assisted Living and Memory Care Facility. At the time of the expedite request, $1,500,000 of the EB-5 capital was being held in escrow to be released only upon approval of the pending Forms I-526. Our firm argued that failure to approve the expedite request would result in severe financial loss to a U.S. business, in that without the infusion of the capital being held in escrow, the U.S. business was at risk of failing. Our firm then pulled on the heartstrings of USCIS by relaying that seventy-four elderly residents, all of whom were in the age group most susceptible to COVID-19, would suddenly be without a home if the expedite request was not approved. Finally, our firm argued that the approval of the expedite request furthered compelling U.S. government interests by continuing employment of several U.S. workers and providing care to elderly U.S. citizens and lawful permanent residents. All of the above arguments were strongly supported via documentary evidence, and all fifteen of the pending Forms I-526 received expedited review.
Wolfsdorf Rosenthal LLP has had several recent success stories in cases where expedite requests have been submitted. Contact a Wolfsdorf Rosenthal attorney today to discuss whether you qualify.