COVID-19 Related Delays in I-539 Extension/Change of Status Applications
The Department of Homeland Security has issued an advisory acknowledging that temporary non-immigrants are facing challenges in regards to maintaining their immigration status due to the COVID-19 pandemic. While nonimmigrants are generally advised to depart the U.S. before their authorized period of stay expires, where COVID-19 related circumstances cause them to remain in the U.S. beyond their authorized period of stay, USCIS reminds applicants of the following:
File an I-539 application and apply for an Extension or Change of Status. Ideally, nonimmigrants should file an I-539 application BEFORE their current status expires. In addition, applicants should know that even though USCIS offices are not current open for in-person services (such as interviews), USCIS still continues to accept and process applications and petitions filed by mail and online.
Timely filed Applications for Extension or Change of Status. Nonimmigrants generally do NOT accrue unlawful presence while a timely filed and non-frivolous application for Extension of Stay or Change of Status is pending. It should also be noted that in some circumstances, nonimmigrants who have employment-based visas will receive an automatic extension of their employment authorization for up to 240 days (after expiration of their I-94) once they file a timely application for an extension of stay.
Flexibility for Late Applications. USCIS reminds petitioners and applicants that when considering whether to excuse filing delays, it may take COVID-19 related “special situations” into consideration when deciding whether or not the delay was caused by “extraordinary circumstances” beyond the control of the applicant. USCIS notes that the length of the delay must be commensurate with and reasonably relate to the circumstances. All applicants are required to submit credible evidence to support their requests.
Flexibility given to Visa Waiver Entrants. Although Visa Waiver Program (VWP) entrants are not eligible to extend their stay or change status, under current regulations, if an emergency (such as COVID-19) prevents a VWP entrant from departing on time, USCIS may grant a period of satisfactory departure for up to 30 days, in its discretion. In cases where VWP entrants were already granted satisfactory departure and were not able to depart within this 30-day period because of COVID-19 related issues, USCIS has the authority provide them with an additional 30-day satisfactory departure extension. To request satisfactory departure extension from USCIS, VWP entrants should call the USCIS Contact Center.
If you have questions about the filing your I-539 Application to Extend or Renew your nonimmigrant visa, contact my office to schedule a consultation to discuss your situation.
