USCIS Applications Pending

The Department of Homeland Security recognizes that COVID-19 creates immigration challenges. So, they changed some regulations regarding non-immigrants in the U.S. who are going out of status. There are options for people who find themselves stuck in the US because of COVID-19.

1. Extensions

Visa Status

Nonimmigrants can file for an extension of stay, or an adjustment of status. This is helpful for those won’t be able to return to their home country at the time that their visa expires. The USCIS is still actively processing extension requests. Be aware that you must file for your extension request in time. Late submissions will not save you unless you were prevented from filing in time for compelling reasons.

So long as you file for an extension of status or a change of status in a timely manner, you will not have unlawful status in the U.S. The USCIS will consider your request and can agree to extend your status for good cause.

Employment

Employment authorization with the same employer and same terms and conditions is automatically extended for up to 240 days after I-94 expiration. However, you must file the extension on time.

2. Late Filings

The USCIS acknowledges that COVID-19 has complicated the lives of many. Because of this, they will consider COVID-19 when deciding whether to excuse late filings based on extraordinary circumstances. This applies to those who filed I-129 and I-539. The timeline of the extraordinary event and the expiration of the visa must be aligned. The applicant must also provide evidence that will prove to the USCIS that the request and circumstances are legitimate.

3. Visa Waiver Entrants

Generally, those who apply for a Visa Waiver Program (VWP) are not allowed to extend their stay or change their status. The VWP (a.k.a, ESTA form), is limited by law. This means that the USCIS is prevented from extending the status, except in particular circumstances.

However, the USCIS reports the following:

8 CFR 217.3(a) Satisfactory departure. If an emergency prevents an alien admitted under this part from departing from the United States within his or her period of authorized stay, the district director having jurisdiction over the place of the alien’s temporary stay may, in his or her discretion, grant a period of satisfactory departure not to exceed 30 days. If departure is accomplished during that period, the alien is to be regarded as having satisfactorily accomplished the visit without overstaying the allotted time.

Ports of entry (POE) including deferred inspection (DI) may be contacted to grant a period of satisfactory departure. In addition, a VWP traveler can contact a USCIS Contact Center. If a VWP has already requested a satisfactory departure and is still unable to leave due to COVID-19, they can request an additional 30 days.

[U]nder 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. Please see 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.

Avoiding Penalty

Anyone who will remain in the U.S. beyond authorized stay should call the USCIS Call Center for direction. You should also keep notes about flights out of the U.S. This includes the fact that flights are grounded, and when exactly they open will up so that you know when it is reasonable for you to depart the U.S.  Even if the USCIS does not grant an extension or in the event you fail to pursue it, it is still possible to avoid an unlawful presence bar. You may be able to obtain a B visitor visa to the U.S. in the future if you are diligent and keep notes. You must be able to clearly explain your situation. It is possible to avoid penalties by keeping notes and documentation.  Of course, calling the USCIS Call Center in a timely manner for guidance is important.