Covid-19 Alert: Steps To Avoid Accruing Unlawful Presence

Foreign nationals who are unable to depart the U.S. before the expiration of their authorized period of stay due to the Covid-19 pandemic have the following options to ensure they do not start accruing unlawful presence:

Apply Timely For An Extension of Stay/Change Of Status

Foreign nationals who timely file an application for Extension of Stay or Change of Status generally do not accrue unlawful presence while the timely-filed, non-frivolous Extension/Change of Status application is pending. Furthermore, in respect of foreign nationals in certain nonimmigrant employment visa classifications like L-1 and H-1B, 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 the extension of stay request is filed on time.

If an Extension of Stay or Change of Status request is filed after the authorized period of stay 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 pandemic. USCIS can consider delays caused by the Covid-19 pandemic when deciding whether to excuse delays in filing documents based on extraordinary circumstances. The length of delay must, however, be commensurate with the circumstances. USCIS will evaluate such requests on a case-by-case basis, and the petitioner or applicant must ensure to submit credible evidence in support of their request.

Foreign Nationals On ESTA

Foreign nationals who have entered the U.S. under the Visa Waiver Program (VWP), popularly known as ESTA, and are unable to depart from the U.S. because of the pandemic, should call the USCIS Contact Center to request ‘Satisfactory Departure’ from USCIS. Under the 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. USCIS has also announced that for 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.

We will continue to monitor the situation closely and will provide further updates as the situation develops.

If you have any questions regarding maintaining status in the U.S., or need help filing for an extension or change of status, contact VisaPro Law Firm today. Our experienced immigration attorneys will be happy to assist you.

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