5 Tips to Manage Immigration Cases After Government Reopens

Now that the government has reopened for business, how should practitioners approach immigration cases affected by the federal government shutdown?

While it’s no surprise that not all federal agencies were equally affected, it is surprising that not all agencies have issued clear guidance right away on their homepages.  In the absence of official guidance, immigration practitioners should provide clear justifications for filing delays and to proactively respond to cases affected.  Here are our top 5 suggestions:

1. Be Obvious – Clearly address the fact a case has been filed late (either in court or with USCIS).  No practitioner wants his/her case to be rejected or denied due to a late filing so it’s imperative that any delay in filing should be clearly flagged, at the outset of the case, along with a (hopefully) justifiable excuse.  In this case, a federal shutdown should qualify so long as you properly document the timelines.  Whether you use colored paper to flag the case as a “Delay Due to Federal Shutdown” case, or provide a paragraph explaining the delay, the choice is yours.  Leaving the issue of a late filing unaddressed for a reviewer to guess the reasons would be akin to juggling flamethrowers while riding a unicycle!

2. Go Ahead, Make Assumptions – USCIS has issued guidance to stakeholders alerting the public to the following:

If an H-1B, H-2A, or H-2B petitioner submits evidence establishing that the primary reason for failing to timely file an extension of stay or change of status request was due to the government shutdown, USCIS will consider the government shutdown as an extraordinary circumstance and excuse the late filing, if the petitioner meets all other applicable requirements.

It conveniently left out E-3 petitions even though those petitions also require Labor Condition Application filings.  Absent guidance from USCIS, it would make practical sense to treat E-3 petitions the same as H petitions filed late as a result of the shutdown.  Be sure to document appropriately (see #1).

3. Manage Expectations – Prepare your clients for (long) wait times.  Visiting immigration court?  Having to call the 800 customer service number?  Be prepared for potentially long delays as many affected foreign nationals (and their legal counsel/aid) may have the same idea as you and physical queues and phone lines may be long!

4. Leave a Paper Trail – Are you having problems accessing the Department of Labor’s iCert portal?  Is your client having problems printing their I-94 from Custom & Border Protection website and cannot visit the Deferred Inspection Unit?  Consider the delays may be attributed to a high volume of users attempting to access the sites.  Accessing government sites during the next business day may bring more success.  However, it’s prudent to document prior, failed attempts to access a site, in case you need a paper trail to prove you couldn’t access the sites earlier.

5. Be Programmatic – Implement a system to keep track of all immigration cases affected by the shutdown.  While a simple excel spreadsheet is helpful, there are other robust tools, like our EDGE immigration case management software, that can automate your tracking system for you.  Regardless of your choice of tools, there’s a finite period of time to proactively respond to your caseload to ensure maximum success.  Plan early for a successful execution.

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