Stranded in the USA? Extend Your Visa or Change Your Status
Under normal circumstances, individuals in the US with a nonimmigrant visa have to leave the country before their authorized period of admission expires.
However, the coronavirus pandemic has resulted in many nonimmigrants unexpectedly having to remain in the US beyond their authorized period of stay, unable to leave because of closed borders or the inability to secure a flight out of the US.
With no indication of when borders will reopen or when travel restrictions will lift, it can be difficult for visa holders to know what to do.
You will of course want to avoid breaching your visa terms and falling foul of US immigration rules, and any impact this may have on future applications.
Overstaying in the US for more than six months can, for example, result in a mandatory three-year bar to returning to America, and overstays of a year or more results in a mandatory 10-year bar. The only possibility of these being rescinded is if a waiver is applied for and successfully granted.
If you have a substantial amount of time left to run until expiry of your leave, you could wait out and hope that your home country’s borders are reopened before your leave expires.
If, however, your visa is nearing expiry, it is advisable to apply to extend your period of stay or to change your status to avoid overstaying.
Extending your stay or changing status
USCIS continues to accept and process applications and petitions, so in most cases, it should be possible to avoid any immigration issues by applying to extend your stay or to change your status before your visa expires.
You should retain lawful status if you have filed a genuine application that is currently pending with USCIS. In addition, employment authorization with the same employer will be automatically extended for up to 240 days after I-94 expiration when an extension of stay request is filed on time, provided the same terms and conditions of the prior approval continue to apply.
As is standard practice, you will need to evidence that you meet the eligibility criteria under the relevant immigration route, for example that you have the financial means to support yourself while you remain in the US and if applying to extend nonimmigrant status, that you intend to return to your home country as soon as this becomes possible.
It may be that you are able to leave before any extension application is decided. This will not be an issue, as your application can be closed when you leave the country.
Late applications
Given the current unprecedented circumstances, USCIS has powers to excuse a nonimmigrant’s failure to file an extension or change of status request if the delay was due to extraordinary circumstances beyond the applicant’s control. COVID-19 related issues are generally being accepted as qualifying under this exception, as long as the delay is proportionate to the circumstances and the applicant can evidence the reason for the delay to their petition.
This means if you are already in a period of overstay due to the pandemic situation, you should apply for an extension as soon as possible. Be prepared to evidence your situation and the reason for the delay in your application.
Visa Waiver entrants
If you are in the US under the visa waiver program, (VWP) you would not ordinarily be allowed to extend your stay (or to change your status) while in the US.
However, current regulations afford USCIS discretionary powers in an emergency situation preventing departure, such as COVID-19, to grant up to 30 days for the VWP entrant to leave the country.
Where the entrant is still not able to depart within the discretionary 30-day period due to COVID-19 related issues, USCIS can again grant a further grace period of 30 days.
In both instances, the VWP entrant must contact the USCIS contact center to notify of their circumstances and arrange for the extension.
Keep contemporaneous records!
In all cases, nonimmigrants in the US whose status has been affected by the coronavirus pandemic are advised to retain evidence of their circumstances.
For example, if your home country has closed its borders, keep any official written communications confirming this fact. If you had already bought your return flight ticket, keep a record of this as proof of your intention to leave the country by the required date. Also keep any communications with the airline company proving your flight was cancelled or has been rebooked.
US immigration advice
NNU Immigration is actively monitoring the impact of the pandemic on US immigration policy and application processing.
As the situation continues to develop, please contact our US immigration specialists for the latest advice for your specific circumstances.
This article does not constitute direct legal advice and is for informational purposes only.
Last updated: 26 April 2020
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law (AILA) and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with both US and UK operations to meet their workforce needs through corporate immigration.
Nita successfully acts for corporations and professionals, entrepreneurs, artists, actors, and athletes from across the globe, providing expert guidance on all aspects of US visa and nationality applications, and talent mobility to the USA.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
