USCIS Sets Guidelines for Expedited Review for Cases Affected by Administrative Errors

May 1, 2012

To err is human. While the expression is over three hundred years old, penned by the hand of the great eighteenth-century English poet Alexander Pope, it has since taken on a colloquial utility, used or at least known by everyone. Even the United States Citizenship and Immigration Service (USCIS) has realized that it is not infallible to human error. In a laudable showing of acknowledgement of its fundamental humanity, the USCIS established last month a process that allows immigrant petitioners who have received an unfavorable ruling in their case due to a specifically-defined administrative error to request for expedited review for corrective action. The new process is a significant step forward in ensuring judicial fairness for immigrant petitioners, particularly for those whose cases would have otherwise received a favorable adjudication.

Under the guidelines for the process for expedited review, the USCIS has outlined four "specifically-defined" administrative errors for which a petitioner may submit a service request. Petitioners may apply for expedited review only in the following circumstances:

  1. If the USCIS issued an adverse decision based exclusively on the customer's failure to respond to a Request for Evidence (RFE), Notice of Intent to Deny (NOID), or Notice of Intent to Revoke (NOIR), and the customer possesses documentary evidence that he replied to the Requests and/or Notices in a timely manner.
  2. If the USCIS issued an adverse decision based exclusively on the customer's failure to respond to a RFE, NOID, or NOIR, and there is evidence that the USCIS failed to send the Notices or Requests to the petitioner or his attorney or representative of record.
  3. If the USCIS issued an adverse decision based exclusively on the customer's failure to appear at a biometrics appointment or failure to respond to an RFE, NOID, or NOIR, and there is evidence that that the petitioner properly submitted a change of address prior to the issuance of the Notice or Request to the wrong address.
  4. If the USCIS issued an adverse decision exclusively based on the petitioner's failure to appear at a biometrics appointment, and there is evidence that the petitioner attended the appointment or properly filed to reschedule the appointment.

While the above administrative errors are likely the most common and easily correctable, they are not inclusive of all types of administrative errors that I believe should fall under the criteria for expedited review. As an immigration lawyer who has practiced the last ten years in Silicon Valley, I have seen a handful of bureaucratic mistakes by USCIS. One administrative error not listed under the criteria for expedited review is when a petitioner calls to reschedule an interview and receives a Notice from the National Customer Service Center (NCSC) confirming the request, but the USCIS denies an application solely because the petitioner failed to attend the interview.

If gone uncorrected, an error made by USCIS will have a profound impact on a petitioner's life. Often petitioners can resolve administrative mistakes through informal means, such as contacting an officer at his local USCIS office, working through the attorney-liaison process, or heading down to the USCIS office in person to settle the matter. Unfortunately, such quick fixes are not available in all circumstances. A petitioner who has exhausted his informal channels is then left with no other option other than to file a Motion to Reopen (MTR) his case on the Form I-290 B, Notice of Appeal or Motion. The filing fees to submit the MTR alone costs a hefty $630. Attorney fees for such a matter will certainly tack on additional hundreds of dollars. Indeed, in such extreme instances, time, money, and emotional well-being will also be at stake.

According to the USCIS, if an immigrant petitioner believes that the reason for the adverse adjudication of his case falls under one of the specifically-defined categories listed above, he should call the National Customer Service Center to request for expedited review. Such persons should take action as soon as possible upon realization of the administrative error. The USCIS states that it will aim to provide a response within five business days, but that delays in notifying the agency of errors may result in a response 30 days after the submission of the service request. Some actions may require the petitioner to show evidence of the administrative error by making an appointment at the Field Office that adjudicated his case.

Within five days upon creation of the Service Request, the petitioner should receive a response from USCIS that does one of three things: acknowledges the administrative error with an explanation of the outcome and provides an estimated time for future communication; informs the petitioner that the USCIS found no administrative error; or states that the USCIS requires longer than five days to issue a determination and includes an estimated date for a final response.

For more information on the expedited review for cases affected by administrative error, please refer to the USCIS website at: www.uscis.gov