USCIS announces ‘flexibility’ for non-immigrants during COVID-19

ON April 13, 2020, the Department of Homeland Security (DHS) announced it will exercise more flexibility for non-immigrants who must depart the U.S. by a certain date, but are now facing “immigration-related challenges as a direct result of the COVID-pandemic.”

DHS is aware that certain nonimmigrants must depart the U.S. before their authorized period of admission expires. This would include visitors or temporary workers who were allowed to remain in the U.S. until a date certain. However, these nonimmigrants may unexpectedly be forced to remain in the U.S. beyond their authorized period of stay due to COVID-19, especially where there are travel bans, difficulty in obtaining an international flight, and quarantines, lockdowns, or “shelter in place” requirements in the U.S or abroad. (For example, there is a quarantine for travel in and outside of Manila).

Where a non-immigrant was allowed to remain in the U.S. to a date certain (the date on their I-94), USCIS recommends the following:

1. Apply for an extension or change of status. USCIS continues to accept and process applications and petitions during the COVID-19 pandemic. Many forms are available online for filing.

2. If the extension or change of status request is filed timely (before your period of authorized stay expires), then the person does not accrue “unlawful presence.” In some cases involving work authorization with the same employer, it’s possible to receive an automatic extension for up to 240 days after the I-94 expired when an extension of status is timely filed.

3. If the extension or change of status request is NOT timely filed, USCIS stated it would exercise flexibility or discretion. In other words, USCIS may be more lenient with late filings based on delays caused by the COVID-19 pandemic. In those cases, USCIS has the discretion to excuse delays or late filings based on “extraordinary circumstances” which are beyond the control of the alien, “such as those that may be caused by COVID-19.” However, the length of delay in filing must be reasonable under the circumstances. For example, if a person, five years from now, files an extension on a visitor visa, that may be unreasonable.

Because of the COVID-19 pandemic, many rules, regulations, procedures, and filings with USCIS and immigration courts are constantly changing. I realize these changes can be confusing and complex. My office continues to remain open (remotely) and continues to accept phone consultations and processing our existing clients’ cases. We will continue to keep you updated as developments arise.

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Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.

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