What happens if you remain in the U.S. Beyond your authorized period of stay due to Covid-19?

Posted by Alexander Carl | Apr 14, 2020 | 0 Comments

What happens if you remain in the U.S. Beyond your authorized period of stay due to Covid-19?

Although it is not advised to stay in the U.S. beyond your authorized period of stay, we do recognize that this may occur on account of the Covid-19 virus.  If you are a nonimmigrant and you have stayed beyond your authorized period of stay in the U.S. because of the Covid-19 virus then there are steps that can be taken to mitigate the issues related to unauthorized stay in the U.S. 

First, you should take all necessary steps to avoid any period of unauthorized period of stay in the U.S.  As such, the first step a nonimmigrant should take to avoid this is to file for an extension of status before his or her authorized period of stay expires.  Similarly most non immigrants can apply for a change of status, which can also avoid unauthorized period of stay if properly filed and you qualify for such change in status. 

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 aer I-94 expiration when an extension of stay request is filed on time.

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, 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. Please see 8 CFR 214.1(c)(4) and 8 CFR 248.1(c) for additional information on late requests to extend or change status. In addition, please see our Form I-129 and Form I-539 pages for specific filing and eligibility requirements for extensions of stay and changes of status.

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.    

AILA Doc. No. 20041332

About the Author

Alexander Carl

Partner - Bolour / Carl Immigration Group, APC. 323-218-0465 Email: Email Me Areas of Practice Business Immigration Family Immigration athletes, entertainers and artists Naturalization Education Loyola Law School, Los Angeles, California Juris...

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