Before Lawful Status Expires... If a person in non-immigrant status in the US does not leave the country before his or her period of authorization expires, he or she would be considered out of status, and may begin accruing unlawful presence in the United States. However, what if the alien cannot leave the US due to travel restrictions in place due to the Covid-19 pandemic?
The following information is an excerpt from a USCIS email on this topic dated April 13, 2020.
The Department of Homeland Security (DHS) recognizes that there are immigration-related challenges as a direct result of the coronavirus (COVID-19) pandemic, and continues to carefully analyze these issues and leverage its resources to effectively address these challenges within its existing authorities. DHS also continues to take action to protect the American people and communities, and is considering a number of policies and procedures to improve the employment opportunities of U.S. workers during this pandemic.
Generally, nonimmigrants must depart the United States before their authorized period of admission expires. However, DHS recognizes that nonimmigrants may unexpectedly remain in the United States beyond their authorized period of stay due to COVID-19. Should this occur, the following options are available for nonimmigrants:
IApply for an Extension. Most nonimmigrants can mitigate the immigration consequences of COVID-19 by timely filing an application for extension of stay (EOS) or change in status (COS). U.S. Citizenship and Immigration Services continues to accept and process applications and petitions, and many of its forms are available for online filing. Due to the increased demand for this type of relief, we recommend applying as soon as possible to account for processing delays.f You File in a Timely Manner.
If You File in a Timely Manner. Nonimmigrants generally do not accrue unlawful presence while the timely-filed, non-frivolous EOS/COS 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.
Flexibility for Late Applications. USCIS reminds petitioners and applicants that it can consider delays caused by the COVID-19 pandemic when deciding whether to excuse delays in filing documents based on extraordinary circumstances. Under current regulations and as noted on the USCIS Special Situations page, if a petitioner or applicant files an extension of stay or change of status request (on Forms I-129 or I-539) after the authorized period of admission expires, USCIS, in its discretion, may excuse the failure to file on time if it was due to extraordinary circumstances beyond their control, such as those that may be caused by COVID-19. The length of delay must be commensurate with the circumstances. The petitioner or applicant must submit credible evidence to support their request, which USCIS will evaluate on a case-by-case basis. These special situations have been used at various times in the past, including for natural disasters and similar crises.
Flexibility for Visa Waiver Entrants. Visa Waiver Program (VWP) entrants are not eligible to extend their stay or change status. However, under current regulations, 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. Please see 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 satisfactory departure from USCIS, a VWP entrant should call the USCIS Contact Center.
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We are closely monitoring the COVID-19 pandemic and its impact on individuals, businesses, and immigrants. Stay turned for the latest information. We can help prepare an extension of stay application or assist with overstay issues.
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This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular matter, as each matter has its own set of circumstances and must be evaluated individually by a licensed attorney.