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Travel often causes issues for individuals who are in the U.S. with visas that will expire or may have already expired during this period, so it is important to understand what are the obligations for those in these situations.
Non-Expired Visa Status
If your non-immigrant status or permission to stay in the US (date on the I-94, if you received one) is due to expire and, it does not appear that you will be able to travel prior to its expiration due to the COVID-19 crisis, then you generally should file for an extension of your current status or a change of status, whichever is more appropriate. USCIS has announced that nonimmigrants who may unexpectedly have to remain in the United States beyond their authorized period of stay, should apply for an extension of stay or change of status in advance.
An extension of status is often achieved by filing an I-539 or in some cases an I-129 with USCIS, along with the required evidence to support the petition. Properly filing the petition in a timely manner is important, which also means it should be supported by documentation sufficient to allow USCIS to accept and process it.
Generally Section 214 of the Immigration & Nationality Act and its corresponding regulations [i.e. 8 CFR § 214.1(c)], allow an individual with a pending I-539 or I-129 to remain in the U.S. lawfully, pursuant to the specific conditions of their visa, while USCIS adjudicates the application, if it was filed before the expiration of their status. So it is critical that action be taken timely.
Expired Visa Status
If the visa status of an individual has already expired and their failure to depart was due to the coronavirus, there may be an option to recover their status. The current regulations state that USCIS may accept and approve an I-539 or I-129 which was filed after the person’s status expired, if it was “due to extraordinary circumstances beyond [their] control.” (See 8 CFR § 214.1(c)(4)(i)) USCIS has acknowledged that this exception may be applied to those impacted by the coronavirus.
ESTA-Visa Waiver Holder Status
Some visitors in the U.S. have a status that cannot be either extended nor changed, for example individuals who entered on an ESTA/Visa Waiver Program; however the law provides a limited exception for those individuals. 8 CFR §217.3(a) states that if “an emergency prevents an [individual] admitted [on an ESTA/Visa Waiver Program] from departing from the United States within his or her period of authorized stay, the district director having jurisdiction over the place of [their] temporary stay may, in his or her discretion, grant a period of satisfactory departure not to exceed 30 days”.
USCIS has indicated that they may exercise their discretion and grant additional periods of stay for those with an ESTA entry and has directed them to request satisfactory departure from USCIS, through the USCIS Contact Center.
If you or anyone you know would like help applying for an immigration extension of stay, change of status application, or any other immigration benefit, our experienced immigration lawyers in Boston are here to help. Call to schedule an appointment today at: 617-303-2600 (ext.0) or fill out the online appointment request form. We continue assisting clients via telephone, email and video conference while the stay at home advisory is in effect in Massachusetts.
