our blog last week, we touched upon procedures for Extensions of Status & Changes of Status during the COVID-19 Pandemic. On April 14, 2020, USCIS provided further guidance on the matter. While consulates abroad have suspended visa processing, USCIS continues to accept cases throughout this pandemic, and any change or extension of status can be mailed to the appropriate USCIS office. Accordingly, a timely filed change or extension of status can be filed as it normally would be filed. USCIS has explicitly stated that this option is available to nonimmigrants who were required to depart the United States at the end of their lawful stay but could not do so due to Coronavirus.
What if my status has already expired? USCIS has stated they will provide flexibility for late applications due to “extraordinary circumstances” beyond the applicant’s control. Furthermore, USCIS has clarified that the COVID-19 Pandemic is in fact an extraordinary circumstance. Petitioner’s/ Applicants must submit credible evidence with their case, and each adjudication will be determined on a case-by-case basis.
What is considered “credible evidence” in the event that my status expires, and I need to file an extension/change of status? We recommend collecting the following: 1) Evidence that you had a flight booked to leave the United States before your status expired; 2) Evidence that the flight was cancelled; 3) Evidence that you made a good-faith effort to change your flight or to find a new flight; 4) Evidence that your home country has suspended international flights (if applicable); and 5) Evidence of the severity of the COVID-19 pandemic in your home country. If you have a pre-existing medical condition that puts you at a higher risk for severe illness and death, we recommend that you provide evidence of that condition as well. The Center for Disease Control has published a list of pre-existing conditions.
What if I am here on ESTA and my stay if expiring? As we mentioned in our last blog, Customs and Border Patrol (CBP) instituted procedures for satisfactory departure. This would allow you to extend your lawful stay for 30 days at a time at a CBP deferred inspection site. In its latest guidance, USCIS seems to be taking over the process for satisfactory departure. It is unclear if both CBP and USCIS will be able to grant satisfactory departure at this time. If you would like to request satisfactory departure, you may contact USCIS at 1-(800)-375-5283.
I am here on an H-1B visa and I was laid off; unfortunately, I cannot go back to my home country due to travel restriction. What are my options? You may apply for a change of status to a B1/B2 visa based on the fact that you cannot return to your home country at the moment; this is in line with the most recent USCIS guidance. This may also “buy” you time to find new H-1B sponsor once the economy picks back up.
Lastly, we would like to note that if your status is expiring soon or if you already out of status, you should take the affirmative steps listed above. Now that USCIS has provided clear and explicit guidance, nonimmigrants will be expected to take action to mitigate the consequences of falling out of status. Our firm stands with you in these troubling times, and we can help guide you through this period of uncertainty.
Darren Silver & Associates is an award-winning boutique immigration firm based in Los Angeles that has successfully represented both multi-national companies and high-net-worth individuals for over 23 years.