U.S. Citizenship and Immigration Services is not currently offering special flexibility to nonimmigrants who are unable to depart the United States because of the COVID emergency, the agency has announced. Foreign nationals affected by the emergency may seek a change of status or extension of stay under standard USCIS procedures.
Typically, an extension or change of status must be filed before a foreign national’s current period of admission expires. USCIS has the discretion to accept late filings on a case-by-case basis if the applicant can show extraordinary circumstances. In today’s announcement, the agency acknowledged that the COVID emergency may result in some nonimmigrants unexpectedly remaining in the United States and that such situations could constitute extraordinary circumstances warranting relief.
Extending a Stay During the Emergency
Existing USCIS regulations provide the following options for those with an expiring period of stay:
- Timely extension applications and work authorization. Nonimmigrants in H-1B, L-1, O-1, TN and certain other classifications who are sponsored for a timely extension of their current status by their existing employer receive an automatic extension of work authorization for up to 240 days while the extension is pending.
- Discretionary relief for late extensions. Where an application to extend or change status is filed after the beneficiary’s current period of stay has expired, USCIS has the discretion to excuse the late filing if the delay was due to extraordinary circumstances beyond the beneficiary’s control. This form of relief – known as a “nunc pro tunc” extension – is granted on a case-by-case basis and must be supported by credible evidence of the reasons for the delay.
- Discretionary relief for Visa Waiver Program (VWP) travelers. VWP travelers unable to depart the United States before their 90-day period of admission expires due to COVID may seek a discretionary form of relief known as “satisfactory departure.” Satisfactory departure applications must be supported by credible evidence of the reasons for the delayed departure. Though this form of relief has existed for many years, it has been only rarely granted in the past.
What this Means for Employers and Foreign Nationals
Limited discretionary options are available to foreign nationals unable to timely depart the United States or seek an extension or change of status due to the COVID emergency. Though USCIS suggests that COVID-related delays may be excused, applications for relief must be carefully documented. Adjudicators have a great deal of discretion in their review, and applications are still likely to be subject to a high degree of scrutiny.