The American Immigration Lawyers Association (AILA) filed a lawsuit against the U.S. Department of Homeland Security (DHS) and its agency the United States Citizenship and Immigration Services (USCIS) on April 3, 2020. AILA listed the necessity for action by USCIS due to restrictions such as the need for social distancing and mandatory stay-at-home orders put in place because of COVID-19. These restrictions have prevented many of AILA's members and their clients from being able to complete certain in-person procedures needed to proceed with visa or other pertinent processes related to immigration.
AILA's lawsuit demands for USCIS to toll deadlines and expiration dates for any individual's lawful status or potential expiration of employment authorization from March 13, 2020 until 90 days after the National Emergency officially ends. It also calls for the tolling of deadlines to apply to those admitted into the United States under the Electronic System for Travel Authorization (“ESTA”) and the Visa Waiver Program (“VWP”).
Without these actions put in place, AILA makes it clear that attorneys and/or immigrants may be forced to either choose to violate their local laws or miss time sensitive deadlines put in place by USCIS. The lawsuit claims that the defendant violated the Administrative Procedure Act by not acknowledging and addressing the “harm to Plaintiff's members” that could take place with USCIS' inaction. A second claim is also made that the defendant has violated the Procedural Due Process because the defendants' inaction “constitutes an unconstitutional created danger to Plaintiff's Members.”
While USCIS has not issued a formal response to AILA's lawsuit, it does list on its website that “most nonimmigrants can mitigate the immigration consequences of COVID-19 by timely filing an application for extension of stay (EOS) or change in status (COS).” The USCIS website also says that extraordinary circumstances caused by COVID-19 may lead to late filings being excused, thus keeping those who were unable to file in time from receiving disciplinary measures usually given in response to late filing. Though no decision has been put in place yet, the last action taken in the lawsuit was on April 29 when Judge Richard J. Leon signed a standing order.
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