U.S. Citizenship and Immigration Services (USCIS) released an announcement today reiterating legal requirements for applying for an extension or change of status and reminding applicants of its discretionary authority to excuse late filings. The agency did not announce any new policies or measures to provide flexibility to foreign nationals who are unable to depart the U.S. upon expiration of their status due to the COVID-19 emergency.

Key Points:

  • The announcement reminds eligible nonimmigrants that they may apply for an extension of stay (EOS) or change of status (COS), and that nonimmigrants generally do not accrue unlawful presence while their timely-filed, non-frivolous application is pending. Certain extension applicants may benefit from the automatic 240-day extension of work authorization with the same employer, subject to the same terms and conditions of the prior approval.
  • For applicants who fail to timely file for EOS or COS before their authorized period of admission expires, USCIS reminds applicants that it has discretionary authority, on a case-by-case basis, to excuse the failure to timely file if the delay was due to extraordinary circumstances. The petitioner or applicant must submit credible evidence to support the request. More information can be found on the agency’s Special Situations page.
  • Travelers who entered the U.S. on the Visa Waiver Program (VWP) may not extend or change status, but USCIS has discretion to grant a period of satisfactory departure for up to 30 days if an emergency (such as COVID-19) prevents a VWP traveler’s departure. For VWP travelers who have already been granted satisfactory departure and are unable to depart within 30 days because of COVID-19 related issues, USCIS has authority to temporarily provide an additional 30-day period of satisfactory departure. This can be requested by contacting the USCIS Contact Center at 1-800-375-5283.

BAL Analysis: USCIS has provided a reminder to employers and applicants of requirements to file an extension or change of status, and its existing authority to excuse late filings on a case-by-case basis. The announcement also clarifies that VWP entrants may request satisfactory departure, but does not provide guidance for work-authorized nonimmigrants who are in the U.S. and do not have the option to apply for EOS or COS. The most up-to-date information about USCIS’s response to the COVID-19 pandemic can be found on the agency’s website.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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