If you are a “non-resident alien” (someone located in the United States, legally or illegally, who is not a citizen and who does not hold a valid green card), accruing unlawful presence in the US can cause a lot of problems. You might be detained, you might be departed, and you might be barred from re-entering the US for 3 years, 10 years, or even permanently.
Reasons Why You Might Find Yourself Unable to Depart the United States Before Your Immigration Status Expires
Unfortunately, the coronavirus crisis has erected several barriers that could make it difficult for you to avoid accruing unlawful presence in the US, including:
- You lose your job while relying on a nonimmigrant work visa (such as the H-1B) to justify your presence in the US;
- The USCIS delays the processing of your visa extension of change of status application due to the coronavirus crisis;
- You can’t book an open seat on a flight home;
- You can’t afford a plane ticket home, especially if prices have skyrocketed due to the necessity of flying you home indirectly by routing you through a variety of airports to circumvent local restrictions;
- You are unwilling to expose yourself and your family to possible exposure to the coronavirus while transiting through multiple airports and spending hours at a time in the close quarters of an airplane cabin;
- You are unwilling to risk going home because your home city has been much harder hit by the coronavirus pandemic than the US city where you live currently; or
- You face immigration barriers at transit airports and even at your home country’s immigration border. Many countries will not allow temporary transits through their airports, and some countries are barring even their own citizens from entry without medical documentation that can be difficult to obtain in the US. Currently, thousands of people find themselves stranded in the US for exactly these reasons.
Your Options, According to the USCIS
According to the USCIS, the following options might prevent you from accruing unlawful presence in the US, depending on the circumstances:
Applying for an Extension of Your Immigration Status
If you are eligible, you can apply for an extension of stay in the US under your current status or attempt to change to another immigration status. Some important points need to be considered, however:
- Your application must not be frivolous — in other words, you must have a decent chance of approval so that the USCIS will not treat you as someone who filed an application for an immigration benefit that they knew they didn’t qualify for, just to buy some additional time. If the USCIS considers your application frivolous, it will extend you no immigration benefits on the basis of the application.
- As long as your application is not frivolous and as long as it is not filed late, in many cases, you will not accrue unlawful presence during the period that the USCIS is adjudicating your application.
If your presence in the US is based on employment, this strategy could buy you up to another 240 days of lawful presence in the US even if your application is eventually rejected. By this time, however, you may have found a way to surmount the obstacle that is causing your current problems — or your application might be approved.
Late Applications and USCIS Forbearance
If you file a late application for an extension of stay or a change in status, the USCIS might still exercise forbearance and refrain from penalizing you. You will need to offer a good reason for filing late, and you will need to document this reason as thoroughly as you can. Forgiveness of a late application, however, is entirely at the discretion of the USCIS.
Visa Waiver Entrants and “Satisfactory Departure”
If you entered the US under a visa waiver program rather than under a visa, under normal circumstances you cannot extend your stay in the US. Nevertheless, under emergency conditions (possibly including the coronavirus crisis), the USCIS might grant you an extra 30 days under a principle known as “satisfactory departure.” It may even be possible for you to extend your stay for a second 30-day period under this principle.
The Last Resort: Hope for a Future Amnesty
Although the current administration has so far been notoriously inflexible in dealing with unlawful presence in the US, after the worst of the coronavirus crisis has ended, it is possible that political pressure might start to build to offer immigrants amnesty for illegal presence as long as it can be traced to unavoidable circumstances triggered by the coronavirus crisis.
Such an amnesty might even waive unlawful presence-based bars to re-entering the US for some people. Ultimately, only time will tell.
