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.
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.
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.
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.
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.
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.
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.
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.
As per the rule, they get 60 days to respond to the court. See below the sample court order that was served to them.
Yes, it is indicated in the lawsuit to cover those individuals as well. See below screenshot.
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