On April 13, 2020, the US Department of Homeland Security issued a press release due to the COVID-19 pandemic – as to how the pandemic applies to immigration-related issues. DHS is working to protect Americans and American communities – including considering policies to help improve US working conditions during the pandemic.

The DHS announced the following options for nonimmigrants who need to “remain in the United States beyond their authorized period of stay due to COVID-19.”

Apply for an extension

One fundamental way to reduce the consequences of COVID-19 on nonimmigrants is to file an extension of stay (EOS) application or a change of status application (COS) in a timely manner. USCIS is continuing to accept and process these applications and petitions. The forms should be available online.

Be sure to file your EOS/COS request in a timely manner

If you file your EOS/COS application before your expiration date, nonimmigrants generally do not accrue unlawful presence – while the application is pending. “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.”

There is some flexibility for late applications

USCIS is considering COVID-19 pandemic delays in deciding “whether to excuse delays in filing documents based on extraordinary circumstances.“ The USCIS does have the discretion to excuse a failure to file a timely Form I-129 or Form I-539 request it if was due to extraordinary circumstances beyond the applicant’s control. COVID-19 is generally considered an extraordinary circumstance.

  • The length of the delay must match the circumstances
  • The EOS/COS request is subject to current regulations and our Special Situations page
  • The applicant must supply credible evidence and documentation to support their EOS/COS request.
  • Each request is considered on a case-by-case basis.
  • Some of the guidelines the USCIS has are those that have been used in the past for natural disasters and other crises.

Additional information about COVID-19 related requests is governed by 8 CFR 214.1(c)(4) and 8 CFR 248.1(c). Applicants need to dot the I’s cross the t’s when filing either Form I-129 and Form I-539.

During the COVID-19 health care crises, the USCIS press release does indicate that COVID-19 may be a consideration for extending a person’s stay – if their entry into the United States was based on the Visa Waiver Program. Normally applicants and petitioners can’t use the Visa Waiver Program to extend their American stay or change their nonimmigrant status. The USCIS does confirm in the press release that “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.”

More information about emergency VWP stays due to COVID-19 can review at 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 a satisfactory departure from USCIS, a VWP entrant should call the USCIS Contact Center.

Anyone who has any questions about how COVID-19 is affecting any aspect of USCIS policies and procedures should consult uscis.gov/coronavirus.

Contact an experienced immigration attorney if you or a loved has questions about seeking an extension of stay or change of status for any reason including COVID-19.

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