USCIS Memo on Cases Affected by Hurricanes Katrina and Rita
Posted Oct 21, 2005
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The U.S. Citizenship and Immigration Services (USCIS) issued a memorandum on October 5, 2005, regarding measures to be taken by adjudicators in addressing cases affected by Hurricanes Katrina and Rita. The general directive to adjudicators is to take a generous approach in addressing such cases and use "whatever proper means are available to them to remedy hurricane-related immigration situations." While a deadline has been indicated in some instances, if the USCIS has not given a specific time limit, the adjudicators are directed to extend generosity whenever the matter arises in the future.
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Who Benefits from this USCIS Policy?
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The Memo applies to persons who resided, worked, or operated a professional business or other entity in an affected area of Louisiana, Mississippi, or Alabama at the time of Hurricane Katrina (on or about August 29, 2005) OR an affected area of Texas or Louisiana at the time of Hurricane Rita (on or about September 23, 2005). Foreign nationals are required to have been in lawful status. This Memo is not intended to give benefits to any person who was not in lawful status prior to the time that the hurricanes hit.
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Do I Need any Evidence to Substantiate Being Affected?
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The USCIS recognizes that not everyone will have proof of being affected by one of the hurricanes. To the extent that an affected person has such evidence, s/he should provide it (i.e., driver's license, or any retained documents showing residence or place of employment). We note that it may be possible to obtain some documentation that will show that one lived and/or worked in the affected areas. These include: bank records, IRS records, credit card statements (showing address), insurance records (health, auto, life), loan records (auto, home, personal), medical records, school records, and other general personal records retained in central locations. If there is not sufficient proof, the USCIS will attempt to perform checks to confirm that an individual indeed lived or worked in an affected area, or that an entity was located in an affected area. The Memo directs the adjudicators to give the benefit of the doubt on this matter, as most people would presumably not risk a finding of fraud by falsely claiming to be in an affected area. We strongly caution against making any sort of false claim.
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Can I File a Nonimmigrant Change or Extension of Status Now?
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The Memo recognizes that persons in various nonimmigrant statuses, such as H1B status, may be unable to meet the terms of their status due to physical injury, the destruction of places of business, or evacuation from their residences. Generally, a person who is not working on an H-1 or studying while holding F-1 status for example, is considered no longer to be maintaining valid legal status. The Memo directs adjudicators to use their discretion to overlook such status violations if an extension of status or change of status application or petition is filed within one year of the hurricane that affected the applicant's area of residence or employment. Note that all other statutory requirements to obtain the change or extension of status must be met.
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How Does this Policy Affect Filing for the Green Card?
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Typically, disruptions of nonimmigrant status also affect one's ability to adjust status to permanent resident status in the U.S. This USCIS Memo further directs adjudicators to excuse the failure to maintain nonimmigrant status if the individual can show that Hurricane Katrina or Rita caused the disruption in status. This directive to the adjudicators is to be followed whenever such an application to adjust status is filed. Given that retrogression affects most family- and employment-based cases at this time, this directive may need to be remembered for many years to come.
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What if We Could Not Respond in Time?
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Applications and petitions for which the parties do not respond in a timely manner generally are denied for abandonment. The Memo indicates that such cases can be reopened for a period of up to one year after the date of the relevant hurricane. The petitioner or applicant must show a direct connection between Hurricane Katrina or Rita and his/her failure to continue the application or petition.
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What if I Do Not Live or Work in an Affected Area but am Indirectly Affected?
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USCIS also recognizes that some people will not be able to respond to Requests for Evidence (RFEs) because they cannot get information that is needed from the affected areas. It is possible in some cases that the hurricane/s impact individuals who are otherwise considered outside the affected areas. For example, one who needs proof of employment with an employer or enrollment in a school may be affected even if s/he no longer resides, works, or attends school in that area. If such an individual provides an affidavit or a sworn declaration stating an inability to obtain the evidence from the affected area, the Memo indicates that the adjudicator should hold such cases open for six months.
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In the affected areas, some RFEs cannot be delivered due to the disruption of mail services. These cases should also be held by adjudicators for at least six months beyond the RFE deadlines, granting the petitioners or applicants time to contact the USCIS. Note that the burden of contact is on the petitioner or applicant. It is unlikely that an adjudicator will attempt to contact the petitioner or applicant again once the initial RFE is issued.
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Can I Obtain Replacement Documents?
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Applications to replace green cards, I-94 cards, employment authorization documents (EADs), and other proof of status may be filed at the normal location for such filings or at any local USCIS office. Those who file to replace green cards may obtain the I-551 stamp from any local USCIS office. Persons who file for EAD cards from local offices, in most cases, should be able to get their EAD cards the same day.
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Are there any Fee Waivers Available?
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Fee waivers may be possible for victims of both Hurricane Katrina and Hurricane Rita. Biometrics fees, however, cannot be waived.
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Do I Get More Time to File an Appeal?
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The Administrative Appeals Office (AAO) will accept a late brief on a case that was affected by either Hurricane Katrina or Hurricane Rita if the brief is submitted before Thursday, March 23, 2006. The clear notation "Late Brief Due to Hurricane" must appear on the front of the brief.
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What if I Did Not Respond in an Adoption Case?
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Adoption home study amendments may be required for persons affected by Hurricane Katrina or Rita. It is also possible that some potential adoptive families will miss the regulatory deadlines for submitting home studies, amended home studies, or orphan petitions. The October 5th USCIS Memo instructs adjudicators again to be as flexible as possible and to contact the USCIS Headquarter Field Operations Office before making a negative determination on an adoption case that has been impacted by the hurricane/s.
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Conclusion
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We at The Law Office of Sheela Murthy applaud the USCIS for taking proactive steps to direct their adjudicators to provide as much assistance as possible to those whose lives have been impacted by Hurricane Katrina or Hurricane Rita. We encourage MurthyDotCom and MurthyBulletin readers affected by either hurricane to use the USCIS Memo to support their applications and petitions so that the devastation caused by these natural disasters does not create needless additional immigration problems.