Handling Your Immigration Case At The Time Of The Coronavirus Or Any Other National Emergency
24 March 2020Author: New York Immigration Lawyer Alena Shautsova
The Coronavirus disrupted our lives on every possible level. It is a time of uncertainty for everyone in the world, but those who have pending legal matters may have additional stress factors to take into consideration: deadlines, inability to see an attorney or a notary, inability to submit the documents physically...
As of the date of this article, USCIS offices remain closed for all in-person business including interviews, Asylum interviews, and fingerprint appointments. Many Immigration courts are closed for all non-detained matters. If you have an appointment or a hearing of any sort that was/will be missed due to this closure, the government will automatically reschedule it for you.
For the US Immigration legal system, deadlines are very important: the one-year asylum deadline, the filing of an SIJ petition before a 21st birthday deadline, deadlines to respond to RFE’s and deadlines to submit employment-based visa or green card cases. The most important thing to do during this time is to stay informed of the situation as it unfolds. Our website and Facebook page is a good resource of information as we monitor news on US Immigration, but the official sources are always more reliable and, you can refer to them if there is a situation in dispute: for example, websites such as www.USCIS.gov and justice.gov/eoir.
Recently, New York Governor Cuomo called for a halt on the statute of limitations for legal cases. It should be noted, however, that while Cuomo called for a halt on the statute of limitations, if this goes into effect it will only affect state-level legal jurisdiction. US Immigration is a type of federal law, and the only entity that has the power to call for the halting of a statute of limitations for immigration purposes is the Federal Government. Therefore, asylum cases must still be filed; SJIS cases must still be filed; RFEs and employment-based green cards must still be filed. The good news is, that while New York State employees have been ordered to stay home, the USCIS offices are still accepting cases. For most of these cases, they are handled administratively, at least to the extent of meeting deadlines.
Administrative Filings that can still be handled during this time:
- Affirmative Asylum filings – This is an asylum case filed within the one-year deadline for persons who have not been placed in deportation proceedings already.
- SJIS Cases with finished Family Court proceedings – Some Family Courts may not be accepting cases for SJIS at this time because they require a hearing, or if they are, they may not have that hearing until the pandemic is finished. If your Family Court proceedings are finished, you may file your case with USCIS and preserve your deadline. If you have not finished your Family Court proceedings, we suggest you reach out to your jurisdictional court and ask them what accommodations they are providing. Some Courts are beginning to set up Zoom conferences for online hearings in emergency cases. The best thing to do is hire an attorney for investigative services to see if the court in your jurisdiction will allow this and how to handle it properly.
- RFEs – Requests for more evidence. These are strictly administrative and can be filed through the mail.
- Motions to reopen/reconsider and appeals
- Adjustment of status filings
- Petitions for family members
- Waiver submissions such as I 601A, I 212, I 601, etc.
- U visa/status submissions
- All other types of petitions per USCIS.gov website
Remote Access To Justice
In New York, Governor Cuomo allowed notaries to provide services via video conference, which is essential for certain forms of filings. One will not need to go out and try to find a notary in person at this time.
Another major change is that at this time, USCIS allows for photocopied signatures to me submitted rather than “wet” signatures. This is very helpful as it will resolve the issue of the need for in-person meetings between the attorney and the client at this time.
In addition, those employers who are hiring at this time, they are allowed to verify I-9 related documents without physically examining them.
Now, the Immigration courts already have a plan in place as to how to operate at the time when in-person appearances cannot occur: the head of the Immigration courts system issued a memorandum directing the judges to process all the filings, issues, and arguments based on paper submissions rather than in-person meetings. This new practice, will, of course, demand legal skills from those who will be submitting materials in front of the courts... Read its details here.
What to do if you missed the deadline due to the circumstances beyond your control?
The good news that the USCIS legal system already has some safeguards in place for situations that may affect one’s legal rights. While we do not have any guidelines specifically related to COVID-19 yet, we can use general rules to navigate these waters:
Asylum:
If you missed your one-year filing deadline at this time: you can file your Asylum application nevertheless, arguing that circumstances beyond your control interfered with your ability to meet the deadline. The US laws allow for certain exceptions to the one-year deadline, may it be sickness or other circumstances. I would think that global pandemic of the semi-deadly virus will qualify as such circumstances since it paralyzed the life of our entire society.
USCIS
Deadline for USCIS motion to reopen/reconsider, appeal: it is very hard to restore such deadlines, but again, I believe one should have a chance under this circumstances if he/she can demonstrate that the deadline was missed due to no fault of her own, and she acted diligently to submit the fillings afterward. This is what the law states:
Any motion to reconsider an action by the Service filed by an applicant or petitioner must be filed within 30 days of the decision that the motion seeks to reconsider. Any motion to reopen a proceeding before the Service filed by an applicant or petitioner must be filed within 30 days of the decision that the motion seeks to reopen, except that failure to file before this period expires, may be excused in the discretion of the Service where it is demonstrated that the delay was reasonable and was beyond the control of the applicant or petitioner. 8 CFR 103.5
Administrative Appeals Office
The current regulations explicitly provide for an ability to request to extend the deadline for submitting briefs or additional evidence:
On Form I-290B, appellants may indicate that they will submit brief or additional evidence within 30 days of filing the appeal. This 30-day briefing period is automatically granted by checking the appropriate box on Form I-290B. It does not require additional AAO approval. If, however, an appellant requires additional time beyond the original 30 days, the AAO may extend the deadline for submitting briefs for good cause shown.
Appellants may mail or fax extension requests directly to the AAO within 30 calendar days of filing the appeal. See Chapter 6.1 for the AAO’s contact information. The request should contain the specific reasons for seeking an extension.
If the AAO approves an extension request, it will generally authorize an additional 30-day briefing period.
Filing an extension request does not automatically extend the 30-day deadline for submitting briefs. Unless and until the AAO grants an extension request, the existing deadline to submit brief or additional evidence remains unchanged.
The AAO has the discretion to accept or reject supplemental information submitted after the deadline for submitting briefs.
To supplement a pending appeal with new evidence after the deadline, the appellant should add “SUPPLEMENTAL EVIDENCE” in all capital letters in the subject line of the cover letter, and include the requested information for case-specific correspondence as set forth at Chapter 6.1(b).
In other words, if you faced a situation when a deadline is going to be missed: document to the best of your abilities the efforts you undertook not to miss the deadline, and do your filing as soon as you can when you have an ability to submit your filings. You will need to present your explanation for the failure to meet the deadline and ask for the deadline to be excused.
Please note that this article provides only general guidelines. The government may impose special specific rules in light of the COVID-19 situation. It is recommended that you consult with an attorney if possible when you are dealing with any type of Immigration matter. To reserve a consultation with our office, please call 917-885-2261.