USCIS suggests timely filing of extension of stay application to avoid immigration consequences of pandemic.
For non-immigrants from India and elsewhere with soon to expire visas who find themselves in a limbo with the US Citizenship and Immigration Services (USCIS) offices closed due to coronavirus pandemic, there is some good news.
Noting that “there are immigration-related challenges as a direct result of the coronavirus pandemic,” USCIS Monday outlined options available to non-immigrants so that they do not “accrue unlawful presence.”
“Generally, nonimmigrants must depart the United States before their authorized period of admission expires,” the agency said in a notice on its website. “However, we recognize that nonimmigrants may unexpectedly remain in the United States beyond their authorized period of stay due to covid-19.”
In such cases, USCIS said following options are available for stranded nonimmigrants:
Apply for an Extension. Most nonimmigrants can mitigate the immigration consequences of covid-19 by timely filing application for extension of stay (EOS) or change in status (COS).
USCIS said it continues to accept and process applications and petitions, and many of its forms are available for online filing.
“If you file in a timely manner,” the agency said, “nonimmigrants generally do not accrue unlawful presence while the timely-filed, non-frivolous EOS/COS application is pending.”
“Where applicable, employment authorization with the same employer, subject to the same terms and conditions of the prior approval, is automatically extended for up to 240 days after I-94 expiration when an extension of stay request is filed on time.”
Flexibility for Late Applications. USCIS reminded petitioners and applicants that it can consider delays caused by the covid-19 pandemic when deciding whether to excuse delays in filing documents based on extraordinary circumstances.
“Under current regulations and as noted on our Special Situations page, if a petitioner or applicant files an extension of stay or change of status request (on Forms I-129 or I-539) after the authorized period of admission expires, USCIS, in its discretion, may excuse the failure to file on time if it was due to extraordinary circumstances beyond their control, such as those that may be caused by covid-19.’
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The length of delay must be commensurate with the circumstances, the USCIS said. The petitioner or applicant must also submit credible evidence to support their request, which USCIS will evaluate on a case-by-case basis.
These special situations have been used at various times in the past, including for natural disasters and similar crises, it noted.
USCIS also suggested looking at 8 CFR 214.1(c)(4) and 8 CFR 248.1(c) for additional information on late requests to extend or change status for stranded nonimmigrants.
In addition, applicants should look at USCIS Form I-129 and Form I-539 pages for specific filing and eligibility requirements for extensions of stay and changes of status.
Flexibility for Visa Waiver Entrants . Visa Waiver Program (VWP) entrants are not eligible to extend their stay or change status, USCIS said.
However, under current regulations, if an emergency (such as covid-19) prevents the departure of a VWP entrant, USCIS in its discretion may grant a period of satisfactory departure for up to 30 days.
USCIS also suggested looking at 8 CFR 217.3(a) . For those VWP entrants already granted satisfactory departure and unable to depart within this 30-day period because of covid-19 related issues, USCIS has the authority to temporarily provide an additional 30-day period of satisfactory departure.
To request satisfactory departure from USCIS, a VWP entrant should call the USCIS Contact Center .
For other policy updates, operational changes, and other covid-19 information on stranded nonimmigrants, please visit uscis.gov/coronavirus.