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“Equitable Tolling” Saves Immigrant Worker Petition

Aug. 5, 2016

Our office last year helped a colleague save an I-140 Immigrant Worker Petition that was rejected by the U.S. Citizenship and Immigration Services (“USCIS”) because it had been received too late.

Background: In most cases, people who want to immigrate based on employment first have to go through a process called “Labor Certification.” Labor Certification (under the acronym “PERM”) is in most employment-based cases a prerequisite to the ability to file for a “Green Card.” In this process, the sponsoring employer conducts certain prescribed types of recruitment aimed at determining whether there are any qualified and interested U.S. workers available for the job. If none applies, and if the foreign worker is himself or herself qualified, the employer proceeds to apply for a PERM Labor Certification. Once the Labor Certification is “certified” – not by USCIS but by the U.S. Department of Labor (“DOL”) – it is valid for only 180 days. Before the end of that 180 days, the sponsoring employer must file with the USCIS a Form I-140 Petition for Alien Worker, to start the so-called “Green Card” process.

If the employer files the I-140 even a day after Day 180, the filing is rejected and the underlying Labor Certification becomes void. In such cases, the employer has to again start and complete the Labor Certification process, which can take over a year in certain circumstances. Worse, the so-called “Priority Date” – the date the case is placed into the Green Card queue – is irretrievably lost. The difference can be a year or more, and the loss of the original Priority Date can, for a number of reasons, be disastrous to the foreign worker’s immigration status.

It is good practice to file the I-140 as soon as possible, and in any case early enough so that if the filing is rejected for any number of non-fatal deficiencies, there is enough time to refile before the dreaded 180 days has elapsed. But sometimes things happen.

In this case, the attorney sent the file to USCIS before the 180th day, and it was even received a few days before the 180th day. However, it was inadvertently sent to the wrong USCIS location. The USCIS has so many different filing addresses, depending on the nature of the filing, that it is easy to send files to the “wrong” location.

In such cases, USCIS practice is usually to send the file on to the “correct” address; but the fees are not accepted, and the case is not actually “filed,” until the package is received at the “correct” address. In this case, by the time the file reached the “correct” address, it was past the 180th day, and the filing was rejected as late. Needless to say, potential disaster loomed.

Our office took over and sent the file for filing (to the “correct”) address, with a written detailed letter-brief arguing why USCIS should accept the file even though past the 180th day, and excuse the delay, under the principle of “equitable tolling.” We were successful, in that the case was accepted, and expeditiously approved.

What is Equitable Tolling?: To understand equitable tolling, one must first understand the concept of a “statute of limitations” (“SOL”). An SOL is a statute prescribing a maximum time for taking some kind of legal action. Examples with which readers may be familiar are SOLs prescribing the time period in which a person may file a lawsuit for personal injury, breach of contract, fraud, etc.; or, in criminal law, a time period in which a prosecutor is allowed to charge someone with a particular type of crime. It is generally a complete defense to a lawsuit filed or a criminal prosecution initiated after the SOL has “run.” This means that even the best case may be lost, before any determination on its merits, on the technicality that it was filed too late. The SOL for filing an I-140 Petition after a PERM certification is 180 days.

In some cases, however, an SOL can be “tolled,” meaning that the SOL is considered to have stopped, or ceased to run, for some period of time which can be added on to the SOL date. For example, a minor’s time to file a personal injury lawsuit may be “tolled” until he or she reaches adulthood; an SOL for fraud may be “tolled” during the period in which the defrauded party could not reasonably have discovered the fraud; and so forth.

The U.S. Supreme Court has declared that there is a presumption, “read into every federal statute of limitation,” that the Equitable Tolling doctrine may apply. Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946). All Federal Circuits, including our own Ninth Circuit, are in agreement.

There are two problems with this potentially generous exception.

(1) It is not applied just because a party failed to comply with the SOL and now wants relief. The applicant who wants “equitable tolling” to apply still has to show “due diligence” (i.e., “I tried”), and in general circumstances beyond his or her control, and to convince USCIS of the likelihood of severe prejudice by a refusal to process the matter on its merits.

(2) It applies only to what USCIS regards as a true SOL. It DOES NOT apply to what USCIS considers a “statute of repose.”

What the heck is a “Statute of Repose”?: A statute of repose (“SOR”) is an ironclad, no-exceptions SOL which imposes a strict deadline regardless of whether or when an affected party has been injured, has discovered the injury, or even could have discovered the injury, or has any kind of excuse for acting later than the date set by the statute of repose.

One of the best-known SORs in Immigration Law is INA section 245(i), which allows certain people who were the beneficiaries of certain types of immigration-related filings to apply for immigration benefits even if not “legally” in the U.S. For a person to enjoy the benefit, the underlying filing has to have been filed not later than April 30, 2001.

Another well-known example is the two-year deadline for a spouse or child of a U.S. Citizen or Lawful Permanent Resident, “who has been battered or has been the subject of extreme cruelty” perpetrated by that spouse, to self-petition for adjustment of status under the Violence Against Women Act (“VAWA”).

Unless some kind of tolling is actually written into a SOR, no excuse, however heart-breaking, be it ignorance, incompetence of a lawyer, or even natural disaster preventing filing, is accepted for a late filing after the “drop-dead” date of the SOR.

There are a number of other SORs in Immigration Law. Unfortunately, there is no handbook that tells practitioners or applicants what is an SOR and what is just an everyday SOL. Research into case law and commentary is necessary to determine whether Courts have ruled on the “statute of repose” issue anytime a party seeks to invoke equitable tolling. Fortunately, USCIS did not raise the SOR issue in this case, and simply accepted the check for the filing fee without comment.

The lesson to be learned is that if there are definite dates by which Immigration-related documents must be filed, they must be calendared and complied with. The Immigration practitioner or the DIY applicant must always check to see that documents are being sent to the correct address and that if filing fees are required, those fees are in the precisely correct amount (as USCIS will reject filings with payments that are too little OR too much). But if the deadline is missed for some reason beyond the applicant’s control, always at least explore the possibility of “equitable tolling” before throwing in the towel!