By Suzanne Monyak

Law360 (April 8, 2020, 8:33 PM EDT) -- The federal government's reluctance to pause immigration deadlines and automatically extend soon-expiring work permits is introducing new hurdles for foreigners doing essential work during the coronavirus pandemic and may be putting attorneys at risk.

The immigration bar has called on U.S. Citizenship and Immigration Services to forgive missed deadlines and renew foreigners' visa statuses that expire while President Donald Trump's national emergency is in effect, warning that failure to do so will put immigrants — and their lawyers — at unnecessary risk, while also distracting immigrants on the front line of the crisis.

"Every single human being that is not essential, that doesn't have to be out of their house to perform a vital function for the benefit of the community, should be at home," Leon Rodriguez, a partner at Seyfarth Shaw LLP and former USCIS director, told reporters Wednesday. "They should not be going to the office, they should not be going, in the paper-based USCIS system, to assemble thousand-page filings to then FedEx over to USCIS."

Meanwhile, critical health care workers on specialty occupation visas, like the H-1B, "are finding themselves being drawn away from their vital work" and "instead are busy, along with their lawyers, along with human resources personnel at their hospitals, working on renewing their immigration filings," Rodriguez said.

USCIS has closed its field offices and suspended in-person interviews and naturalization ceremonies. The agency has also offered attorneys and employers more leniency in responding to visa deficiency notices, has eased signature requirements and has waived the fingerprinting requirement for recipients of the Deferred Action for Childhood Arrivals program to renew their work permits.

A USCIS spokesperson told Law360 on Wednesday that the agency "continues to analyze issues and other possible steps USCIS may take to further address some of these challenges and will consider the public's recommendations."

But many attorneys have said it's not enough, with deadlines for a number of other immigration filings fast approaching while many immigrants and their lawyers are limited by local stay-at-home orders.

Asylum applicants must file requests for protection within a year of entering the U.S. Green card holders married to American citizens must apply to lift the conditions on their permanent residency within 90 days before their two-year anniversary, or else risk losing status. Employment-based green card petitions must be filed within 180 days after the U.S. Department of Labor approves the employer's request.

And as many businesses are forced to lay off and furlough employees, immigration attorneys are fielding calls daily on how to cut hours or pay for foreign workers while maintaining compliance, which often involves notifying USCIS of terminations and changes to visa holders' employment status. 

The call for agency action is at the heart of a lawsuit brought earlier this month by the American Immigration Lawyers Association, which is urging a D.C. federal court to force USCIS to postpone "any and all deadlines" for initial immigration applications and visa renewals to prevent foreigners on valid visas from violating their immigration status or losing their work authorization if they are unable to file their renewal applications or leave the U.S.

By failing to offer widespread deadline relief, USCIS 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 lawsuit says.

The suit also notes that the U.S. cannot afford for the many immigrants who are doctors and other health care workers to lose permission to work, with hospitals already under strain as confirmed cases of the novel coronavirus in the U.S. approach half a million.

Immigration attorneys based in New York City, the epicenter of the U.S. coronavirus crisis, warned they would find themselves in "legal peril" if USCIS continues to refuse to suspend immigration deadlines.

New York City's stay-at-home order, which mandated the closure of all nonessential businesses by March 22, "will render it virtually impossible for me to meet these deadlines on behalf of our clients," Cheryl R. David, a New York City immigration lawyer, wrote in a declaration attached to the AILA's lawsuit.

David noted that her firm receives mail from USCIS daily that she can't access at home, where she also doesn't have a powerful printer or scanner to process the thousands of pages of evidence needed to back an immigration application.

"The pandemic has been affecting daily life activities and work life in a variety of different ways in keeping people from accessing technology that they might need to meet some of these deadlines," Cristina Velez, a senior staff attorney with the National Immigration Project of the National Lawyers Guild, told Law360 on Wednesday.

This could particularly impact lower-income immigrants, who may need to send documents or filings to their attorneys but lack the technology to do so. But the pressure of continuing deadlines affects people "across the board," Velez said, as attorneys and visa applicants could be barred from compiling and submitting filings if they are diagnosed with or exposed to the virus.

Tammy Fox-Isicoff, a Miami-based immigration lawyer, said in a declaration attached to the  AILA's suit that she was forced to continue working while awaiting her daughter's coronavirus test results after her daughter was exposed to the virus. 

"During this period, I should have been quarantined but would have committed malpractice had I not met deadlines," Fox-Isicoff said, charging USCIS with putting her in a "lose-lose" situation.

According to Ur Jaddou, former USCIS chief counsel, the agency has the legal authority to suspend deadlines under a regulation that allows it to forgive missed deadlines "due to extraordinary circumstances beyond the control of the applicant or petitioner."

She explained that the agency could extend visa holders' work authorization by posting in the Federal Register, as the U.S. Department of Homeland Security has done to extend work authorization for beneficiaries of Temporary Protected Status, which gives work permits and deportation relief to people from certain countries in crisis.

"There certainly is the legal authority to do this, so what is stopping them?" Jaddou asked.

Rodriguez said USCIS could easily make an announcement "an hour from now" that all deadlines that arise during the pandemic are postponed by deeming the coronavirus pandemic such an "extraordinary circumstance."

"I don't think I have to argue too hard for everybody to agree that given the levels of infection that we're seeing, given the now unprecedented death rates that we're experiencing, that in fact we're living in an environment where extraordinary circumstances apply to absolutely everybody," he said.

--Editing by Kelly Duncan.

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