US companies trying to close international deals or set up new branches in foreign countries are struggling to secure apostilles to certify documents due to quarantine mandates and office closures resulting from the coronavirus (COVID-19) pandemic.
Types of documents that could need an apostille include court documents, administrative documents, notarial acts, and official certifications. Requesting an apostille before COVID-19 was completed by an in-person appointment, a courier service, agents, or mail. As government offices remain closed to public walk-in requests, it can be challenging to determine how to effectively complete the apostille process during the pandemic.
Apostille Process
Apostilles are used when an official document from one country is required to be submitted for recognition in another country. For US companies, the appropriate US office to issue the apostille will differ depending on the type of document requiring certification and whether the apostille is being submitted to a country that is a signatory to the 1961 Convention Abolishing the Requirement for Legalization for Foreign Documents (commonly known as the Hague Convention).
- Non-federally issued documents being submitted to countries that are signatories to the Hague Convention will require an apostille issued by the relevant secretary of state. The requirements to apply for the apostille will differ for state-issued documents (such as a certificate of good standing) and non-state-issued documents (such as a secretary’s certificate certifying organizational documents of a corporation). State-issued documents for a country that is a signatory to the Hague Convention can be submitted for apostille certification directly to the secretary of state of the state that issued the documents. Non-state-issued documents for a country that is a signatory to the Hague Convention will require an original ink signature with notarization, and should be submitted for apostille to the secretary of state in the state where it was notarized.
- Federally issued documents being submitted to any country, irrespective of whether it is a signatory to the Hague Convention, will require an apostille from the US Department of State, and for countries that are not party to the Hague Convention, an additional legalization by the country’s embassy or consulate is needed.
- Non-federally issued documents (state-issued documents and non-state-issued documents) being submitted to a country that is not party to the Hague Convention will require an apostille from the US Department of State and legalization by the country’s embassy or consulate.
Impact of COVID-19 on Apostille Process
The impact of COVID-19 on the apostille process is a state-by-state inquiry, and a country-by-country inquiry, as each government’s offices are taking different precautions. Therefore, it will depend on the office closures and/or reduced processing of individual secretary of state offices or the US Department of State, as well as the current availability of incoming air freight in the country in which the apostille is required to be submitted.
We will walk through the current process in five US jurisdictions for seeking an apostille on a state-issued document, such as a Delaware certificate of good standing, and a non-state-issued document, such as a secretary’s certificate certifying organizational documents of a Delaware corporation. Note, however, that the situation remains dynamic and the processes adopted by individual states are constantly changing. We encourage clients to refer to the relevant jurisdiction’s secretary of state website for more information and continuous updates.
Apostille Processes in Certain States as of May 4, 2020
California
- State-issued documents issued by the State of California must be authenticated by the California secretary of state. The request must be filed by mail. The average turnaround time is unclear.
- Non-state-issued documents must be signed and notarized in California. Such documents should be authenticated by the California secretary of state. Originals with ink signatures are needed. The request must be filed by mail. The average turnaround time is unclear.
Delaware
- State-issued documents issued by the State of Delaware must be authenticated by the Delaware secretary of state. The request must be filed by fax or through an online portal. The current average turnaround time is 2–3 business days.
- Non-state-issued documents must be signed and notarized in Delaware. Such documents should be authenticated by the Delaware secretary of state. Originals with ink signatures are needed. Requests for apostille by hand delivery (to a mailbox) are accepted. The current average turnaround time is same day.
Massachusetts
- State-issued documents issued by the Commonwealth of Massachusetts must be authenticated by the Massachusetts secretary of state. The request must be filed by fax or through an online portal. The current average turnaround time is 2–3 business days.
- Non-state-issued documents must be signed and notarized in Massachusetts. Such documents should be authenticated by the Massachusetts secretary of state. Originals with ink signatures are needed. Requests for apostilles are accepted by appointment only. Those seeking an appointment will need to call to make the appointment and then hand deliver the request at the determined time. Once submitted, the current average turnaround time is 2–3 business days.
New York
- Currently there are no apostille services available, and it is unknown at this time when the secretary of state will reopen for certifications.
Washington, DC
- Currently the secretary of the district is only accepting documents (whether state-issued or non-state-issued) via US mail. The turnaround window is currently 12–15 days.
Additional Resources
For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. We also have launched a resource page to help keep you on top of developments as they unfold. If you would like to receive a daily digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts.
See also our LawFlash, COVID-19: How to Notarize Documents During a Pandemic, which includes a chart on Remote Online Notary Statutes in the United States, for more information on COVID-19’s impact on the notarization process in the United States.
Contacts
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Boston
Carl Valenstein
London
Ayesha Waheed