REPRESENTING CLIENTS IN ALL 50 STATES AND OUTLYING TERRITORIES OF THE UNITED STATES
In its Policy Memorandum dated April 15, 2015, USCIS issued guidance for claiming extraordinary circumstances for late filings when the applicant must have sought to acquire Lawful Permanent Residence within 1 Year of visa availability pursuant to the Child Status Protection Act (CSPA).
As stated in the memo, in order to establish extraordinary circumstances, the alien must demonstrate that:
Examples of extraordinary circumstances that may warrant a favorable exercise of discretion include, but are not limited to:
• Serious illness or mental or physical disability during the one-year period;
• Legal disability, such as instances where the applicant is suffering from a mental impairment, during the one-year period;
• Ineffective assistance of counsel, when the following requirements are met:
• Death or serious illness or incapacity of the alien’s legal representative or a member of the alien’s immediate family
Further, the memo provides that when considering a claim of extraordinary circumstances, the officer should weigh the totality of the circumstances and the nexus of the circumstances presented to the failure to meet the “sought to acquire” requirement, as well as the reasonableness of the delay. In order to warrant a favorable exercise of discretion, the circumstances must be extraordinary and beyond the alien’s control. Circumstances such as financial difficulty, minor medical conditions, and circumstances within the alien’s control such as when to seek counsel or begin preparing the application package are not considered extraordinary. Further, the fact of being or having been a child is common to all applicants seeking protection under the CSPA and does not constitute extraordinary circumstances beyond one’s control to timely “seek to acquire”.
While filing error will not ordinarily be related to extraordinary circumstances, USCIS recognizes that in certain limited instances where the filing error is corrected and the application is re-filed in a reasonable period of time thereafter, the applicant’s failure to meet the deadline may be excused.