As most of us know, Non-Immigrant Aliens such as temporary workers, tourists, and students of other nationalities who are sent to the United States are required by law to leave the country before their authorized period of admission expires; however, the USCIS has now recognized that Non-Immigrant Aliens may remain beyond the time allowed by the authorities due to the coronavirus pandemic.
In order to do so, it is necessary to apply for an Extension of Stay (EOS) or a change of status (COS) in a timely manner to prevent the non-immigrant alien from accumulating unlawful presence while his or her application is pending. In this regard, the USCIS Immigration Agency is currently accepting and processing applications and petitions and many of its forms are available online.
In appropriate cases, USCIS will automatically extend employment authorization with the same employer, subject to the same terms and conditions as above, until 240 days after the expiration of I-94, when a Stay petition is filed on time; however, USCIS reminds petitioners and applicants that it may consider delays due to the coronavirus pandemic when determining whether to excuse delays in filing documents based on extraordinary circumstances.
Under current regulations and as indicated by USCIS on the Special Situations page, if a petitioner or applicant files a Form I-129 or Form I-539 petition for stay or change of status; after the expiration of the authorized period of admission, the USCIS Agency, in its sole discretion, may excuse the failure to file the petition on time if it was due to extraordinary circumstances beyond its control such as those that may be caused by the coronavirus; in this regard the length of the delay should be commensurate with the circumstances.
The petitioner or applicant must present credible evidence to support his or her petition, which the USCIS Agency will evaluate on a case-by-case basis. Such special or situations that have been used on several occasions in the past, including natural disasters and similar crises.
Finally, it is important to note that Visa Waiver Program (VWP) participants are not eligible to extend their stay or change their status; however, under the current regulations, if an emergency such as a coronavirus prevents the departure of VWP participants, the USCIS Immigration Agency at its discretion may grant a satisfactory departure period of up to 30 days, and if the participant is unable to leave during those days due to the same cause of the pandemic, the USCIS Immigration Agency will grant a one-time period of 30 more days.
For more information call our office or visit the website uscis.gov/es/coronavirus
