AILA vs DHS Lawsuit for COVID19 Extend Deadlines for Nonimmigrants

Lawsuit against USCIS by AILA to Extend Deadlines with COVID-19

In US Immigration - Visas by KumarUpdated : 34 Comments

As most of you know, USCIS offices are closed with COVID-19 situation for in-person activities until May 3rd. Also, they have given 60 days flexibility to respond to RFE and NOID, including acceptance of scanned wet signatures. But, they have not really addressed pressing situations for foreigners in proper lawful status with expiring petitions, status or denials. These individuals are non-immigrants like someone working on H1B Visa, their spouses on H4 Visa,  Visitors like Parents on B2 Visa, L1 Visa, many other visa types, including all Visa Waiver Program tourists, who cannot go back to their country. AILA wrote to USCIS few letters on this topic to extend deadlines as these are extreme situations. Since USCIS did not take any action, AILA went ahead with the Lawsuit against USCIS. In this article, we will look at the details of the Lawsuit, which all visa types it applies to and what is that AILA is asking court.

As a background, if are not aware, AILA (American Immigration Lawyers Association) represents American immigration attorneys and usually works with various government agencies like DHS, USCIS, State Department for various immigration related regulations, issues faced by attorneys, etc. In fact, they reported that USCIS denied H1B registrations by Mistake

Background of the AILA Lawsuit against USCIS for COVID-19 Situation

AILA has requested few things in a letter dated March 16th, 2020 like to take proactive measures to limit in-person contact, to extend all deadlines, including status of all the non-immigrants that are lawfully present in US for additional 90 days. While USCIS has taken some measures like closing their offices for in-person activities, they have not really responded to the request on extending deadlines for lawfully present non-immigrants. AILA again sent a letter on March 23, 2020 asking to address the issues of extending deadlines and clearly mentioned that they would go for alternatives like Lawsuit against USCIS. As USCIS has not really responded, they filed a lawsuit in District Court on April 3, 2020. See below screenshot on the lawsuit timelines and status of the filing as of today.  

AILA Lawsuit Against USCIS - Court Dates List Status - April 2020

Some key points in Lawsuit against USCIS by AILA

The lawsuit / complaint is a 30-page document and it sets the context stating the unprecedented situation with COVID-19 pandemic.  They explain the current situation on how USCIS inaction to pause or suspend the current deadlines is going to hurt the frontline medical workers, their attorneys, etc. See below screenshot.

Medical Workers Frontline Visa Issues Lawsuit

They explain the legal basis and why not extending deadlines will impact the future of non-immigrants like being unlawfully present for 180 days will set a 3-year bar, etc.  Also, how they visa can get invalidated, if they remain in US beyond period of authorized stay even for one day. See below screenshot.  

USCIS Deadline Importance in AILA Lawsuit

AILA talks about many such points like above, like how USCIS has discretionary power to reject or deny cases, that were not timely filed or if non-immigrant failed to maintain status…they present many similar points that impact lawful non-immigrants future.

AILA builds up the case saying how they have reached out to USCIS on March 16th and how USCIS addressed some of their points and how some others were not addressed.  They explain the issues with submitting paper copies of applications for many forms that are filed with USCIS, including situations with “shelter in place” orders in various states. Also, they talk about the situation with crisis and how many federal agencies, state agencies have taken measures to extend deadlines and how borders are closed for re-entry for foreigners. See below screenshot.

Risks of COVID-19 with Paper based mailing Applications to USCIS

AILA says that attorneys would suffer harm as they cannot meet deadlines and they will violate court orders of state for “shelter in place” and make it worse.   

Injury to Their Members : AILA says that as per Administrative procedure act, USCIS/DHS actions would case suffering so we are approaching court for review. The key issue is DHS/ USCIS failure to act in this situation is going to cause injury to the members, even USCIS employees and they cannot comply with deadlines in this pandemic situation. See below screenshot.

USCIS Inaction Causing Issues for Futrure Immigration Benefits AILA Lawsuit

They also raise many such points, we have not covered all the points, but only few for you to give an idea. You can read the actual AILA Lawsuit Court Document for full details

What Judgement is AILA Seeking in Lawsuit against USCIS ?

AILA is asking for the below key things

  • USCIS has to suspend/pause all the deadlines for applications, RFE responses, and any other responses to be submitted that were due from March 1st, 2020 for initial applications, extensions, or maintenance of status requests.
  • USCIS to continue the availability of work authorization as well, if they are expiring ( suspend the expiration of status or work authorization)  for all lawful status applicants.
  • USCIS to maintain the current status for everyone as they exist today and not be penalized for any delays from March 1st, which is when President declared Emergency, until 90 days after the national emergency officially ends.

You can see below screenshot of what AILA has requested in the final conclusion, where they are seeking relief for.

Judgement requested in Lawsuit by AILA - Relief

FAQs

Does the request for relief apply to H1B, H4, L2, L1, B2, other visa holders ?

Yes, as you can see above judgement request screenshot, it is blanket and does not really differentiate based on your visa type or status. It is requesting for everyone in lawful status in US as foreigner.

I am on H4 with EAD expiring, Can I continue to work now, with Lawsuit in place?

No, this is just submitted in court, there is no decision or injunction order in place yet. You cannot work until USCIS gives any guidance or court gives judgement on this.

How long does USCIS/ DHS get to respond to this ?

As per the rule, they get 60 days to respond to the court. See below the sample court order that was served to them.

Does this relief request apply to Visa Waiver Program applicants, ESTA, DACA holders ?

Yes, it is indicated in the lawsuit to cover those individuals as well. See below screenshot.Judgement for Visa Waiver Program and All Non-immigrants

Will AILA win this lawsuit and USCIS will agree with all requests ?

Well, AILA has put in a good argument explaining the reality of the COVID-19 and it is injury as per legal terms to their members, so AILA has lot of points on their side to win this. We need to wait and see.

What do you think of the AILA lawsuit against USCIS ? Have you been impacted with the USCIS not extending these? Share your thoughts as comments.

Reference : AILA Lawsuit USCIS

   

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Comments ( 34 )

  1. Akash

    I got RFE on my H1B transfer which I filed in Oct 2019 which I will submit response tomorrow. My I-94 is expired. My I-140 is applied in premium processing just today. My maxout is on this month 26th(June 26, 2020 with no recapture time). If my I-140 is approved in the next 2 weeks, can I file extension with the approved I-140 and continue working? Or should I have a valid I-94 before even thinking about extension using approved I-140?

    1. administrator
      Kumar

      Akash,
      The timing is really tricky…As your max out date is getting close, not sure how long you will get H1B for…if you do not have valid status, you may not be able to extend based on I-140…Talk to your attorney and see what can be done…

      1. administrator
        Kumar

        ramya sekar,
        nothing moved here…very likely the USCIS offices are open now, so not sure, how much this will work.

  2. Sreejith

    Looks like USCIS responded to AILA.

    https://www.forbes.com/sites/stuartanderson/2020/04/13/uscis-disputes-improperly-denying-900-h-1b-visa-registrations/#45442a0970a6

    1. administrator
      Kumar

      Sreejith,
      Yes, this is not tied to the above article or Lawsuit. It is the Duplicate filing issue raised by AILA.

  3. Sharma

    My H1B extension got denied on Apr-6, 2020. How one should make travel arrangements in this pandemic crisis. Is USCIS going to address this issue at the earliest.

    1. administrator
      Kumar

      Sharma,
      If you cannot travel now with COVID, they have given guidance today for special situations. Read USCIS Covid 19 updates You can file for B2 COS and leave when the flights open up and you can travel. Also, discuss with your employer.

  4. Jhansi

    I am working on H4EAD which expires on May 19th and I already have a H1 B visa that is Cap exempt. I have 2 job offers and both my sponsors are applying for H1 B visa transfer between April 15-20. Since premium visa processing has been suspended it is unlikely to get a response from USCIS for my H1B visa transfer on or before May 19th.

    Can I continue working on my receipt Number as the travel may remain banned by May 19th?
    If I go out of status, can I atleast continue to stay in the country until May 19th?
    If I have to leave the country, can I return to US if my job offer still stands when my visa is approved?

    1. administrator
      Kumar

      Jhansi,
      You cannot work on H1B yet until you get h1B approved. You may wait in the country after May 19th, but cannot work. The working is only applicable, if you are moving from A to B on H1B, your case is moving to different visa status.
      Yes, you can, provided you have all H1B documentation and stamping too…

  5. H1B Lottery FY2021

    Kumar-
    USCIS update some policies in their website on April 7th,2020. Do you know what is about that?

    https://www.uscis.gov/policy-manual

  6. Arp

    My husband I140 is denied in Feb 2020 , and his H1b visa is expiring in June . Given a situation , we cannot file for extension on his H1b visa since I140 is denied .Hence we are in jeopardy situation that we also cannot exit /travel in June due to pandemic. Will this lawsuit address a situation like this . WiLL we be not forced to leave the country in pandemic situation.

    1. administrator
      Kumar

      Arp,
      It is hard to know at this point. We hope it gives relief to someone in legal status on March 1st, which your spouse seem to be…Stay tuned.

  7. Apurva Mehta

    Hi,

    Will this extend the 240-day grace period as well? My H1B has technically expired in Sept 2019. I was already on a grace period. And now, instead of approving my application, after 8 months USCIS has sent me an RFE.

    Will my grace period be extended by 90 days after May 2020 – if we get a favourable result from this lawsuit?

    1. Soumya

      My husbands h1b expires in september 2020 and I am on h4 ead. My husband requested his company to file for extension 6months ahead that is march but they are not filing any extensions as of now because of covid and no premium processing.this puts my h4ead at risk. Hope USCIS amends some of the rules atleast during these trying times

  8. Steven

    Hi Kumar,

    In your opinion, what are the chances of the entire H1B program to be suspended this year considering this and everything that’s been going on?

    1. administrator
      Kumar

      Steven,
      They cannot suspend H1B program, there are way too many critical people working on H1B like Doctors, Emergency services personnel…They would not do something like that…It is pure speculation and click bait articles.

  9. H.

    Someone has created the following petition because of frauds that happened in H-1B applications. I think this petition needs to be known. Please see the link below for more info.

    “H-1B ELECTRONIC VISA FRAUD 2020 by filing multiple petitions”

    https://petitions.whitehouse.gov/petition/h-1b-electronic-visa-fraud-2020-filing-multiple-petitions?fbclid=IwAR0quA3ICmnCPro9-bEqPXhPbZHxgEXgsxABOGuFM8-LDJsz36YD_kVcpmE

    1. administrator
      Kumar

      H.
      These petitions go no where, even if they reach 100K…if you want to make a difference, talk to congressman or attorneys and then lobby for it.

    1. administrator
      Kumar

      Jag,
      yes, that’s the request to help such individuals stay in US without counting unlawful presence. We need to wait for court judgement.

  10. H1B 2021

    Kumar,
    Is it also applicable those who converted L1A to H1B status and 6th year is just end by August,2020, but because of COVID that person is not able to go outside US to capture 6th year on Oct1st.
    H1B21

    1. administrator
      Kumar

      H1B 2021,
      Well, there are many situations, but they have not given specifics yet…again, only these will come out after USCIS does any announcement based on the court judgment, we are in beginning phase.

  11. Prakash patel

    Will it cover the employee who is on h1b and now laid off. I mean will it extend 60 Dy grace period during this time due to not able to find a job and due to not able to go back home due to travel restriction?
    Thanks

    1. administrator
      Kumar

      Prakash,
      We do not have any specifics at this point. They may or may not give more time, but they would consider days after 60 not to count for unlawful presence as you cannot exit the country now…again, we have no judgment yet, this is just request…USIS will decide that based on what court says.

    1. administrator
      Kumar

      Lalitha,
      They are asking for not to count the days after denial for unlawful presence as you cannot leave…The main request is for someone who are lawfully present and who have situations of expiration and also like your case and not able to exit…We need to wait and see.

  12. Akash

    Will this help those who are in the edge of their H1B max out period in June with Perm in progress and I-140 PP is suspended? It would have been a possible scenario if I-140 PP was not suspended.

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