Due to the COVID-19 pandemic, the United States Citizenship and Immigration Services (USCIS) is making it easier for foreign nationals to avoid immigration problems if they are unable to timely extend or change their immigration status while in the U.S.
Although nonimmigrants must generally depart the U.S. before their authorized period of status expires, USCIS says it will be more flexible when adjudicating petitions and extensions filed after their expiration dates due to the COVID-19 pandemic.
USCIS acknowledges that many individuals may be forced to remain in the U.S. beyond their unauthorized period of stay as a result of COVID-19 and have been unable to file extensions. Such delays may be caused by a foreign national’s inability to travel internationally or for other reasons related to the COVID-19 pandemic.
Current regulations permit a petitioner or applicant to file an extension of stay or change of status request after the authorized period of admission expires and that USCIS, in its discretion, may excuse the failure to file on time if it was due to extraordinary circumstances beyond their control.. According to USCIS these situations can include delays caused by COVID-19.
Filing a Late Application with USCIS Pursuant to Nunc Pro Tunc
The regulations specifically provide that an extension of stay may not be approved for an applicant who failed to maintain the previously accorded status or where such status expired before the application or petition was filed. However, a late filing may be excused in the discretion of the USCIS where it is demonstrated at the time of filing that:
(i) The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances;
(ii) The alien has not otherwise violated his or her nonimmigrant status;
(iii) The alien remains a bona fide nonimmigrant;
(iv) The alien is not the subject of deportation or removal proceedings.
Please note that the length of delay must be commensurate with the circumstances and the petitioner or applicant must submit credible evidence to support their request, which USCIS will evaluate on a case-by-case basis. USCIS is continuing to accept and process applications and petitions during the COVID-19 crisis.
Nonimmigrants generally do not accrue unlawful presence in the U.S. while the timely-filed, non-frivolous extension of status or change of status application is pending, which also applies in cases where USCIS accepts a late filing pursuant to nunc pro tunc.
If you have any questions regarding remaining in the U.S. during the pandemic and the implications and consequences of late filings, please contact an attorney at Minsky, McCormick & Hallagan.
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