Expediting Your Case with USCIS

by Jason Dzubow

It’s rare that you’ll find the words “USCIS” and “fast” in the same sentence, unless there’s a “not” in there somewhere. The agency that processes U.S. immigration benefits is not known for its lightning speed. But if you’re in a hurry, it is possible to expedite your case. USCIS does not always agree to expedite requests, but there is usually nothing to lose by trying.

In fact, USCIS has an entire web page devoted to expedite requests. Note that this page is not for asylum cases. I wrote about expediting asylum cases here. Also, the web page does not provide information about expediting cases outside the United States. For refugees (not asylees) outside the U.S., there is some limited information about expediting here. And for humanitarian parole applications for people outside the country, there is some information about expediting available here. Finally, if a case has already been processed by USCIS and is now with the U.S. Department of State, you can find some information about expediting here. Also, you can contact the relevant U.S. Embassy directly to ask for help.

For cases being processed inside the country, the USCIS web page provides guidance for how to make an expedite request. Such cases include Employment Authorization Documents (“EAD”), I-730 petitions, Advance Parole, Refugee Travel Documents, applications for Lawful Permanent Residency (the green card), and applications for citizenship.  

Regular USCIS processing.

USCIS considers all expedite requests on a case-by-case basis, and has sole discretion to decide to grant or deny such a request. This basically means that you are asking USCIS to do you a favor (expedite), and if they refuse, there is usually not much to be done. Also, in making an expedite request, USCIS requires documentation to support your claim. USCIS will not expedite any case where premium processing is available (usually, these are cases involving employment-based applications where you pay an extra fee for fast processing).

USCIS lists the following criteria for expediting a case–

  • 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: (1) File the benefit request or the expedite request in a reasonable time frame, or (2) 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.

USCIS indicates that “severe financial loss to a company,” means that the company is at risk of failure. For an EAD, you would want to show an equivalent level of difficulty for the individual. Maybe the person will become homeless or be unable to cover medical bills. Whatever the reason, you must show that you are not able to “withstand the temporary financial loss that is the natural result of normal processing times.”

Cases can also be expedited based on “urgent humanitarian reasons.” The most common examples are health problems (mental or physical, for you or a family member) and safety issues (maybe you are petitioning for a relative who is in danger in his home country).

If you can link your case to a “compelling U.S. government interest,” that could be another reason to expedite. Maybe you are involved with U.S. national security work, for example, and you need to expedite on that basis.

Finally, if USCIS has made a clear error, you can ask them to expedite a case to correct the error, or maybe even a subsequent case that has been delayed due to the previous error.

Whatever the reason for the expedite request, you would want to provide documentation: A letter from the doctor or your employer, medical records, evidence that your family members are living in unsafe circumstances (letters from your relatives or others who know about the problem, police reports, medical reports, country condition evidence), evidence of financial hardship, a USCIS letter admitting to their error, etc.

Expedited USCIS processing.

You can make a request to expedite at the time you file your case or anytime after you receive the receipt.

The better approach is probably to make the expedite request when you file. Include a cover letter that clearly indicates that you want to expedite (you can highlight or underline the fact that you are requesting expedition). In the cover letter, include an explanation about why you need to expedite. I prefer to keep my explanations short. In part, this is because I am lazy, but also, I think busy people at USCIS are more likely to read a short and to-the-point explanation than a long, involved explanation. Finally, along with the other evidence required for your application, include documentation supporting your request to expedite. 

If you have already filed your application and now seek to expedite, the best approach is to call USCIS at 800-375-5283 (they also have a TTY line at 800-767-1833). To make this call, you will need the receipt number for your application. It is not so easy to reach a real person, but once you do, USCIS will create a service request and forwarded it to the appropriate office. After that, USCIS may request additional evidence in support of your request.

If, after making the expedite request at the time of filing or later on, you do not receive a timely response, you can call USCIS to follow up.

USCIS will (hopefully) agree to expedite the case. For applications that are completed in one step (EAD, Advance Parole, Refugee Travel Document), you should receive a decision in the case and–if all goes well–the requested document. For applications involving more than one step (an I-730 for a relative abroad, for example), the first step will be expedited, but subsequent steps will not necessarily be expedited. So for the I-730, you might still need to contact the State Department or the appropriate U.S. Embassy in order to keep things moving.

If USCIS denies the expedite request, it does not mean that they will deny the application. It only means that they will not reach a decision in an expedited time-frame (conversely, just because USCIS agrees to expedite a case does not mean that they will approve the application). 

In our office, we sometimes make expedite requests for our clients. It does not always work, but sometimes it does (this always surprises me), and it can save significant time. For asylum seekers and asylees, many of whom have urgent needs, this can be a real life saver. To maximize your chances for success, you need a strong reason to expedite and documents to support your request. For such cases, USCIS will evaluate the request and–sometimes–expedite your case.

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New Immigration Court Statistics: The Good, The Bad, and The Unknown

by Jason Dzubow

The latest data on asylum grant rates in Immigration Court is out, and as expected, the news is not great. Overall asylum grant rates in court continued to decline in FY 2019, but the news is not all bad. Courts adjudicated a record number of asylum cases this past year: 67,406, up from 42,224 last year and 19,779 in FY2015. Many cases are still being granted. Indeed, even though grant rates are down, in absolute numbers, more asylum cases are being approved than ever (this is because the total number of asylum cases adjudicated is way up). Also, the percentage of applicants represented by attorneys continues to climb (slowly). Here, we’ll take a look at the newest data and what it means for asylum applicants.

Let’s start with the bad news (so no one can accuse me of being an optimist). In FY2019, 69% of asylum seekers were denied asylum or other relief in Immigration Court. This continues a negative trend that began in FY2012, when the overall denial rate was at an all time low–only about 42% of asylum applicants were denied in that glorious year. Since then, denial rates have been steadily climbing. Last year (FY2018), the overall denial rate was 65%. Despite the general negative trend, if we break down the reasons behind the high denial rate, perhaps we can find a silver lining.

On a positive note, courts granted asylum to 19,831 people in FY2019. They are pictured above, celebrating.

One factor affecting the overall denial rate was the large number of decisions for cases where the applicant was not represented by an attorney. For unrepresented applicants, the denial rate was 84%. Interestingly, unrepresented cases move much more quickly than represented cases: 45.3% of unrepresented cases that started in FY2019 were resolved in FY2019. In contrast, only 9.7% of represented cases that began in FY2019 have been decided. I suspect that many of the unrepresented cases are for detained applicants, as such cases tend to go much faster than non-detained cases (since the government does not like to pay for incarceration). Also, it may be that some unrepresented applicants who are recent arrivals in the U.S. have their cases adjudicated on an expedited basis.

Another major factor affecting denial rates is country of origin. Four of the top five source countries for asylum seekers are El Salvador, Guatemala, Mexico, and Honduras. Together, these countries represented about 22% of all asylum cases decided in Immigration Court in FY2019. But for various reasons (harsh U.S. laws, difficulty proving nexus), these countries tend to have higher-than-average asylum denial rates–in the range of 80% denials. So if you factor out these four countries, the overall denial rate would be lower (if you are from one of these countries, it is very helpful to talk to a lawyer and think through the most effective way to present your case). You can look up the success rate for people from your country here (this data can be broken down by court, but not by individual judge).

Other factors that contribute to the high denial rate include detained cases and one-year-bar cases, which are both harder to win than non-detained cases and cases filed on time. A final–and unexpected–factor in the high denial rate is the government shut-down of January 2019. During that period, only detained cases were adjudicated, and since such cases are more difficult to win, the denial rate during the shut-down shot up to nearly 75%. This in turn pushed up the overall denial rate for the year.

For asylum seekers who are wondering about the likelihood of success in court, all these variables must be considered. If you are represented by an attorney, if you are not from Central America or Mexico, if you are not detained, and if you file your case on time, the overall asylum denial rate should be significantly better than 69%. So I guess that is good news, sort-of.

But of course, overall denial rates are of little consequence given that grant rates vary by judge (sometimes quite dramatically). To find the name of your Immigration Judge (“IJ”), call 800-898-7180. When the machine answers, follow the instructions and enter your Alien number. You can then press “1” and hear your next court date and–hopefully–the name of your IJ. If your IJ is not listed in the system, it may mean that no one is yet assigned to the case, but you can double check by calling the Immigration Court directly and asking the receptionist whether your case is assigned to a judge. Once you know your judge’s name, you can look here to find asylum denial rates for your particular IJ (for new judges, there may be no data available).

A few points about the individual IJ data: First, it is probably best to look at the most current denial rate (FY2019), since recent (negative) changes in the law may have affected the percentage of cases judges approve. Thus, the older data may be less relevant to a case today. Second, as we discussed, representation rates and country of origin affect overall grant rates. If you scroll to the bottom of the IJ’s page, you can get some idea of the representation rate before that judge, as well as the source countries for asylum seekers that the judge sees. If the IJ adjudicates many unrepresented cases, and/or many cases from Central America and Mexico, this may increase that IJ’s denial rate. Finally, some IJs decide large numbers of detained cases and this would also negatively affect the judge’s grant rate (the data that I see does not list the percentage of detained cases decided by each judge).

Having said all this, I am not sure how useful it is. Unless you move, you have basically no control over who will be your judge. It is better, I think, to focus on what you can control: Gathering evidence and witnesses, preparing your case, and finding a competent attorney. In my experience, most IJs are fair and will listen to your case. The biggest factor in determining whether you win is usually the case itself, and the most productive thing you can do is focus on the variables you can control, and present the strongest case possible.

Finally, I would be remiss not to thank TRAC Immigration for their continued superb work gathering Immigration Court data (often under difficult circumstances). So thank you, TRAC, and keep up the good work.

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Asylum in a Time of War

by Jason Dzubow

With the escalating tension between the U.S. and Iran, DHS has been detaining Iranian Americans and Iranian nationals at the border and questioning them about their ties to Iran, their background, their family members, and their opinion about the Iranian government.

On the one hand, it’s perfectly reasonable to question people entering our country, particularly during wartime (and when was the last time we were not at war?). It’s also reasonable to apply additional scrutiny to people from “enemy nations.” And so, on one level, it makes sense to look more closely at Iranian Americans and Iranian nationals who are seeking entry into the United States.

On the other hand, it’s difficult to accept anything the Trump Administration does without feeling that there is an ulterior motive. At this point, we have been subject to so many lies, in the service of such bad policies, that nothing the Administration does can be viewed at face value. Is there any intelligence that indicates Iran is planning to retaliate by sending agents to our country? Is there any reason to suspect the particular people stopped and questioned at the border? Or does the Administration just want to scare us, in order to further justify its xenophobic policies? Or maybe to distract from the impeachment? There is no way to know, and when you can’t trust what your own government tells you, it is impossible to evaluate whether its actions are warranted.

Enrico Fermi (left) also invented the Photo Bomb.

In any event, here I want to talk about asylum during wartime. I suppose one response to war would be to shut down the border completely, block all nationals from the enemy country from coming to the U.S., and take measures against any of those nationals (or their decedents) living in the United States. We did the latter during the Second World War, when we detained Americans of Japanese decent. Notably, we did not detain Germans or Italians, even though we were also at war with those countries. But what about granting asylum to “enemy aliens” during wartime? Welcoming them to our country, even though we are at war with their homeland?

There certainly is precedent for giving refuge to “enemy aliens.” Probably the most famous examples are the scientists who fled fascism and anti-Semitism during the Second World War. People like Albert Einstein and Enrico Fermi found refuge in the United States and made important contributions to our efforts during the War (I’m not a fan of the Bomb, but I’m glad we got it before the Nazis). Another well-known example is the Cubans who fled Communism after Fidel Castro took power on their native island. For the past six decades, those same Cubans have been fierce opponents of the Castro regime. A third example is the Iranians who came to the United States after the 1979 revolution. While they generally oppose military intervention against their homeland, most Iranian Americans support democracy and human rights in Iran.

I encountered a less well-known example when I lived in Philadelphia in the mid-1990’s. I met an old man at my synagogue who had been a refugee during WWII. He was Jewish, born in Germany. During the 1930’s, he fled to Britain as a refugee. When the War started, he was detained as an enemy alien and shipped (by boat) to Australia. He was stuck down under for a while, until the Brits realized that he spoke German, and so they shipped him all the way back to England to serve in an intelligence unit. He assisted the Allies during the War, and then later immigrated to the United States.

Also, in my job, I meet people every day who are working to bring democracy and human rights to their countries of origin. Once they get their bearings in the U.S., many of my clients work directly or indirectly to assist the United States with diplomacy and national security. My client from Iran, for instance, is a computer expert who works to overcome censorship in his home country (and in other authoritarian countries), so people can access websites blocked by the government. Another client, from Afghanistan, organizes conferences, bringing high-level American and foreign experts together to discuss national security challenges. A third client advocates for democracy in Cambodia, and is regularly in contact with important U.S. government officials. And a number of my clients work for Voice of American (on and off the air), bringing news and promoting American values in their home countries. You get the point: Foreign nationals who have obtained refuge in the United States, often from hostile regimes, are working to advance U.S. interests and to educate U.S. decision-makers and the public, so we can better respond to national security challenges.

And herein lies the rub: How do we obtain the benefits of this expertise while minimizing the risk to our security? The answer, I think, is asylum. Remember, we do not offer asylum to just anyone who fears harm. Asylum is for people who face persecution on account of their race, religion, nationality, political opinion or particular social group. These “protected grounds” reflect our national values, and thus, asylum is basically set up to benefit people who will benefit us. Asylum seekers are also subject to rigorous security background checks. And so if the system is working properly, we will receive refugees from hostile regimes who will be well-vetted and will present minimal risk to our national security, and who are well-positioned to assist our country vis-a-vis their homelands.

Of course, when a conflict exists between our nation and another nation, we must exercise caution in dealing with citizens of the hostile power. We should use all the tools at our disposal to advance our interests and to keep ourselves safe. Asylum is one of those tools. Rather than discard the asylum system during wartime, we should use it as it was intended–to benefit those who support our values, and to benefit ourselves.

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Ten Immigration Predictions for 2020

by Jason Dzubow

As you may have noticed, it’s 2020. I don’t have high hopes that this year will be any better than the last, at least in terms of immigration and asylum, but I do have some predictions for what to expect in the coming annum. While I am no Joan Quigley, I do expect that at least some of my prognostications will come true. If so, remember, you heard it here first. And now, without further ado, here are ten predictions for 2020–

1. All asylum grant letters will now feature a photo of Donald Trump giving you the finger.

2. Every 36 hours, USCIS will issue an updated version of form I-589. The new form will be exactly the same as the old form, except for the edition date. Old versions of the form will not be accepted.

In 2020, DHS will adopt a new logo, which more accurately reflects its current mission.

3. Having re-written The New Collosus, Ken Cuccinelli will set to work on other popular pieces of Americana: America, the Beautiful will be changed to America the Brutal Is Full. Hail to the Chief becomes Sieg Heil to the Chief. And My Country Tis of Thee will become My country, Muslim free, Sweet land for whites only, Of thee I sing.

4. The Board of Immigration Appeals will be replaced by the 1985 Chicago Bears defense.

5. The abbreviation EAD will be changed from “Employment Authorization Document” to “Employment Americans Detest.” The new EAD will only allow non-citizens to work in jobs that Americans won’t do, such as picking watermelons, washing old people, and serving in the Trump Administration.

6. The Correction Corporation of America will issue a new child-friendly cage. Each cage will be equipped with a tin cup for drinking, a week’s supply of gruel, and a doll to play with–Oliver for boys and Annie for girls.

7. To better track aliens in the U.S., the Trump Administration will require all non-citizens to tattoo their A-number to their forearm.

8. Continuing a trend from last year, in 2020, I-589 forms will be rejected unless all boxes are filled. If there is no answer to a question, you must write “n/a”. If “n/a” is not written correctly, the form will be rejected. Incorrect versions of “n/a” include “N/a”, “n\a”, “NA”, and “n/a”.

9. The wait time for an asylum-pending EAD will be increased to one year. After sending the receipt, biometric letter, and approval letter to your correct address, USCIS will mail the card to the wrong address. After it is returned by the post office, you can re-file and start the process over again.

10. In 2020, the fee for asylum will be $50.00. But fear not. For those who do not have the money, the new form I-666 allows USCIS to harvest your organs in lieu of payment. You really didn’t need that extra kidney anyway, did you?

So that’s it. As you can see, it looks like 2020 is shaping up to be a banner year for immigrants and for us all. On the bright side, it’s already January 7th. That means we only have 359 days left to go… 

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