Law360 (April 3, 2020, 8:30 PM EDT) -- The U.S. Department of Homeland Security has refused to make accommodations for visa applications during the coronavirus pandemic, a decision attorneys say in a Friday lawsuit opens them up to potential legal jeopardy.
The American Immigration Lawyers Association filed suit in D.C. federal court against DHS and the U.S. Citizenship and Immigration Services, saying a federal judge must step in to extend immigration visas and toll filing deadlines that attorneys cannot meet as states enact shelter-in-place orders and nonessential businesses shut down.
“Defendants’ conduct has effectively ended the ability of immigration attorneys to competently represent clients without violating state and local orders and jeopardizing the safety and health of themselves, their staff and their clients,” the organization said.
AILA urged the court to pause USCIS deadlines and expirations from March 13, the day President Donald Trump declared a national health emergency, until 90 days after the emergency is called off.
The organization said the requested measures are the only way for attorneys to continue representing their clients faithfully without flouting government mandates and health experts’ recommendations to stay in place.
Even if attorneys choose to buck stay-at-home orders, their ability to gather the evidence for clients’ visa applications is hampered by other businesses’ shutdowns and employees’ strained telework ability, AILA said.
The organization pointed to the case of Florida member Tammy Fox-Isicoff, an attorney who has to compile the necessary documentation to meet her client’s approaching deadline to file for a visa under the Violence Against Women Act.
However, the businesses with evidence of her client’s marriage and abuse have closed, Fox-Isicoff said in a declaration to the court.
Another AILA member, Cyrus D. Mehta, declared that his work can’t easily be done remotely since he relies on commercial-grade copiers and scanners to print out the thousands of pages of supporting evidence attached to a visa application.
Mehta added that he fears the “great legal peril” that awaits his firm if he misses a client’s deadline.
AILA also stressed that attorneys’ clients risk severe penalties should their visas or work permits lapse.
Foreign citizens who overstay their visas by one day are in danger of being placed in removal proceedings. They further risk accruing unauthorized stay that can bar them from reentering the U.S.
AILA’s Jesse Bless, who is representing the organization, told Law360 that he hopes the lawsuit will convince USCIS to pause its immigration system.
Not only have several U.S. agencies taken measures to freeze their systems, but other countries — such as France, Ireland and India — have moved to toll immigration deadlines and extend visas, he explained.
In contrast, USCIS has taken “baby steps” in response to the national health emergency, Bless said.
Among other actions, USCIS has waived fingerprinting requirements for Deferred Action for Childhood Arrivals program recipients looking to renew work permits and relaxed certain in-person document review procedures to verify workers' employment eligibility.
“But they’re ignoring the elephant in the room,” Bless said.
USCIS doesn't comment on pending litigation.
AILA is represented in-house by Jesse Bless.
Counsel information for the government wasn’t immediately available Friday.
The case is American Immigration Lawyers Association v. DHS et al., case number 1:20-cv-00897, in the U.S. District Court for the District of Columbia.
--Editing by Marygrace Murphy.
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