The Department of Homeland Security (DHS), in response to the immigration-related challenges resulting from the coronavirus (COVID-19) pandemic, has issued additional information about filing extension and change of status petitions for those who “may unexpectedly remain in the United States beyond their authorized period of stay due to COVID-19.” DHS states that in general nonimmigrants must depart the US before their authorized period of admission expires, but if that is not possible because of reasons related to COVID-19, nonimmigrants should note the following:
Applying for an Extension: DHS first notes that many nonimmigrants can mitigate the immigration consequences of COVID-19 by timely filing an application for extension of stay (EOS) or change of status (COS). US Citizenship & Immigration Services (USCIS) is currently accepting and processing applications and petitions, and some forms are available for online filing.
Filing in a Timely Manner: Since nonimmigrants generally do not accrue unlawful presence while the “timely-filed, non-frivolous” EOS/COS application is pending, DHS advises applicants to appropriately plan ahead. DHS notes that, 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 may excuse a nonimmigrant’s failure to timely file an extension/change of status request if the delay was “due to extraordinary circumstances.” 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 “may excuse the failure to timely file if it was due to extraordinary circumstances beyond their control, such as those that may be caused by COVID-19.” DHS notes that the length of the delay must be “commensurate with the circumstances” and that the filing must include credible evidence to support their request, which USCIS will evaluate on a case-by-case basis, as they’ve done in the past for other natural disasters and similiar crises.
Flexibility for Visa Waiver Entrants: Although Visa Waiver Program (VWP) entrants are not eligible to extend their stay or change status, DHS notes that under current regulations if an emergency (such as COVID-19) prevents the departure of a VWP entrant, USCIS at their “discretion may grant a period of satisfactory departure for up to 30 days.” For those VWP entrants who have been granted satisfactory departure and are “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.” VWP entrant should call the USCIS Contact Center at 1-800-375-5283 to request satisfactory departure from USCIS.
We will provide additional updates as USCIS provides them.