On April 13, 2020, the U.S. Citizenship and Immigration Services  published guidance regarding extension and change of status filings. Unfortunately because of the way the USCIS presented this guidance, it has caused considerable confusion among clients as the USCIS largely presented the information as if it were new guidance in response to COVID-19, however, the options presented by the USCIS were already available to applicants absent the COVID-19 outbreak. We shall review each option presented by the USCIS in this guidance and explain what this means for petitioners and applicants.

Apply for an Extension. This is the most straightforward option for petitioners and applicants that many were already using prior to COVID-19, but in these times especially it cannot be stressed enough: if your or your employee’s status is due to expire within the next 6 months, file an extension or a change of status! With the current situation, particularly the lack of international flights, and the numerous measures being taken my foreign governments closing airports and restricting border access, it is key to assess your options now, even if your or your employee’s status isn’t due to expire for several months. In most cases an extension of stay (“EOS”) can be applied for up to six (6) months prior to the expiration. If an extension cannot be sought, consider applying for a change of status, especially if you do not anticipate being able to depart prior to the current expiration.

If You File in a Timely Manner. This goes hand-in-hand with applying for an extension or change of status. For extension petitions that are timely filed with the same employer (for discussion on H-1B portability when changing employers read our article here) for CW-1 H-1B, H-1B1, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, R-1, TN, A3, E-1, E-2, E-3, G-5, and I nonimmigrants, the individual for which the extension is sought automatically has their work authorization extended for up to 240 days beyond their current I-94 expiration. This is commonly referred to as the “240 day rule” and can be found in the federal regulations at 8 C.F.R. §274a.12(b)(20). While this is not a new provision (it was originally added to the regulations back in 2016), during the COVID-19 outbreak, this provision becomes especially useful to employers since it is likely for their to be processing delays with most petitions.

For individuals who are not covered by the 240 day rule, there are still additional provisions in the regulations that provide coverage to individuals. Specifically, an individual who timely files (meaning files prior to their current expiration) an extension or change of status filing is in what is known as a “period of stay authorized by the Attorney General” (i.e., a “period of authorized stay”). It is important to understand that being in a being of authorized stay is not the same as being in lawful status. While an individual who is in a period of authorized stay is legally allowed to remain in the U.S. and will not accrue unlawful presence (“ULP”) they typically do not have authorization to work or depart the U.S., and if they are not ultimately granted an extension or change of status they must typically depart the U.S. upon the denial of such a request.

Flexibility for Late Applications. In instances where an individual has not already sought an extension of stay or change of status prior to their expiration, there is always an option known as a nunc pro tunc (literally “now for then”) that essentially asks the USCIS to forgive the fact that the request has been made after the individual’s status has expired. This is where the greatest confusion from the USCIS’ guidance has emerged, as to most readers, the guidance presents this as a new option specifically available in response to COVID-19, when in reality, this option has always been available to individuals filing after their status has expired. Because a nunc pro tunc request is a discretionary request, we strongly encourage individuals considering such a request to consult with our firm first to ensure you meet the criteria of a request and to maximize the likelihood of the USCIS approving your request.

Flexibility for Visa Waiver Entrants. This guidance for individuals who entered the U.S. under the Visa Waiver Program (“VWP” commonly known as “ESTA”) also is existing guidance for these individuals, although the USCIS has confirmed that it is considering COVID-19 as an emergency described in the regulations. Under the existing regulations (see  8 CFR §217.3(a)) an individual who entered the U.S. under the VWP can request the USCIS exercise discretion and grant an additional 30 days for the individual to depart the U.S. (VWP/ESTA entrants are only allowed to remain in the U.S. for 90 days from the day they entered the U.S.), if they can demonstrate that COVID-19 has prevented their departure. The USCIS has also indicated that if after granting the additional 30 days to depart the VWP//ESTA entrant is still unable to depart that an additional 30 days to depart may be granted. Here again because this is a discretionary request, we strongly encourage individuals considering such a request to consult with our firm first to ensure you meet the criteria of a request and to maximize the likelihood of the USCIS approving your request.

Read the official USCIS announcement here.