Recently U.S. Citizenship and Immigration Services (USCIS) issued an alert related to the timely filing of petitions and applications to extend or change status, without explicitly confirming whether the COVID-19 pandemic will result in flexibility of filing deadlines.

USCIS indicates that they “recognize that there are immigration-related challenges,” that they “continue to carefully analyze…and to leverage [USCIS] resources to address these challenges within [their] existing authorities,” and that the agency “in its discretion, may excuse the failure to file on time if it was due to extraordinary circumstances beyond [a petitioner or applicant’s] control.”

The USCIS has confirmed the following with respect to USCIS procedures for extensions or change of status filings: 

1. USCIS Service Centers continue to accept petitions and applications for extensions of stay or changes in status. Recently USCIS Vermont Service Center abruptly closed for a temporary period of time without advance notice, which resulted in its refusal of incoming mail and courier service. USCIS has not specifically indicated whether late filing may be forgiven if it resulted from initial USCIS refusal of a filing by mail or courier that otherwise would have been received before a deadline. Foster is prepared to argue that any such cases should be treated as an excusable failure due to “extraordinary circumstances beyond [a petitioner or applicant’s] control.”
2. The timely filing of an extension of stay or change in status generally avoids the accrual of unlawful presence, and in certain cases, employment-based filings may result in an automatic extension of work authorization for earlier of 240 days or while the petition or application remains pending. Accordingly, if an individual is unable to depart the U.S. prior to the expiration of current status, Foster recommends filing a timely extension petition or application in order to avoid an overstay of prior admission and the accrual of “unlawful presence.” Accrual of more than 180 days of unlawful presence and subsequent departure generally triggers a 3-year bar to readmission to the United States. Accordingly, even if the reason an individual is unable to timely depart the U.S. is related to COVID-19, for all foreign nationals should be careful to avoid unlawful presence by timely filing for an extension or change of status prior to their current status expiration date.
3. USCIS retains the right on a case-by-case basis to determine whether or not they will exercise discretion for petitions or applications that are filed late due to the COVID-19 pandemic. Because favorable exercise of USCIS is not guaranteed, Foster recommends that employers, petitioners, and applicants not rely upon USCIS discretion. Timely file a petition or application before an existing nonimmigrant status expires. 
4. Visitors who entered under the Visa Waiver Program (VWP) are not eligible to extend their stay from the United States. VWP visitors who are unable to depart the United States due to COVID-19 related issues may not apply for “satisfactory departure” for an initial period of up to 30 days and may apply for an additional 30 days. 

Although this alert does not guarantee similar flexibility to facilitate the timely filing of extensions or change of status filings, USCIS did previously announce that responses to requests for additional evidence (RFEs) and notices of intent to deny (NOIDs) issued between March 1 – May 1, 2020, may be received and reviewed up to 60 days after the expiration date noted in the RFE or NOID.
 
Foster will continue to monitor USCIS policy announcements and procedural changes impacting the employment of nonimmigrants and will make future updates available via our Firm’s website at www.fosterglobal.com in these Immigration Updates©.