Many years ago, I was appointed by then-Chief Judge Judith Kaye to sit on the Commission to Examine Solo and Small Firm Practice. My specific role on the Commission was to examine the availability and affordability of professional malpractice insurance for solo and small firm legal practitioners in the State of New York. Early on, I received quite an education from Gregory V. Serio, the then-Superintendent of Insurance for the State of New York. One thing that I learned, much to my surprise, is that lawyers in New York are not required to carry professional malpractice insurance. I was pretty amazed. I could not even imagine not having a professional malpractice insurance policy in place in my practice.
We all make mistakes, and lawyers are certainly no exception. One of the biggest mistakes a lawyer can make is missing a deadline. When a lawyer “blows a statute of limitation”, for example, it’s entirely possible that he or she may have also lost a client’s cause of action.
In the world of immigration, it’s really no different. Rather than perhaps losing a claim for medical malpractice or breach of contract, when an immigration lawyer misses a client’s deadline, he or she may have missed a client’s opportunity to apply for an immigration benefit or relief from removal. Such a consequence could be devasting for a client.
Of course, there are sometimes limited exceptions built into the law, and occasionally even regulations or case law, creating inconsistent standards which, if met, might provide the client (and his or her lawyer) some relief from missing a deadline.
But with U.S. Citizenship and Immigration Services (“USCIS”), historically, if you missed a client’s filing deadline (e.g., the time period within which to apply for an extension of stay in the United States, or a change of nonimmigrant status), a lawyer might be left to essentially beg an unknown (and perhaps unsympathetic) adjudicator at some far away USCIS service center to exercise his or her discretion to accept a late filing, nunc pro tunc (i.e., back to the date when the filing was originally due).
In this situation, the client would have to show extraordinary circumstances to justify the grant of a nunc pro tunc filing (and law office failure was not always received well as a reason). USCIS was also not consistent as to whether, if it did accept a late filing, it would provide nunc pro tunc relief (which means a client’s filing may be accepted by USCIS, but there might still be a gap between when the original filing was due and when USCIS accepted, and approved, the late filing). Gaps in immigration status can be devastating to a foreign national.
Earlier this year, USCIS issued new policy guidance in the USCIS Policy Manual to address when USCIS may, in its discretion, excuse untimely filed extensions of stay and change of status requests. Generally, a request to excuse a late filing must show: (a) the delay was due to extraordinary circumstances beyond the person’s control; (b) the length of the delay was commensurate with the circumstances; (c) the person has not otherwise violated their nonimmigrant status; (d) the person remains a bona fide nonimmigrant; and (e) the person is not the subject of removal proceedings and, in the case of extensions of stay, is also not the subject of deportation proceedings.
Also important in the changed policy guidance were examples given by USCIS which constitute extraordinary circumstances, and the short list given in USCIS’s Policy Manual was not all-encompassing, which means there is latitude built into USCIS’s updated Policy Manual for adjudicators to exercise favorable discretion (assuming the above factors are all met and a compelling case is brought to exercise it).
A common example of when nunc pro tunc relief may become necessary is when an employer (or more often than not, an employer’s attorney) fails to file for an employee’s dependent family members their extension applications at the same time the employee’s petition or application is filed. It was not always the case that USCIS would see such an inadvertently overlooked matter as an extraordinary circumstance, but now it can.
All lawyers have sleepless nights, and I know some excellent lawyers who have gotten out of the practice of law because of them. Sometimes the ever-present fear of missing a client’s deadline was the reason they did so. A legal malpractice policy can mitigate some lawyer’s sins, but that’s not really the case in the immigration realm, hence the reason why this very small change in USCIS’s Policy Manual is so critically important.