What Should You Do if Your Visa Status is Expiring, and You Can’t Leave the US?

The COVID-19 crisis and the associated suspension of many international flights are impacting many people in the US under a variety of visas which require that a person leave the US by a certain date.  The steps to take to seek to extend a period of stay vary according to the type of status held, and the government’s policies being adopted in response to the COVID-19 crisis.

On April 13, 2020, US Citizenship and Immigration Services (USCIS) announced delays in adjudicating applications for extension or change of status.  While acknowledging the immigration consequences of not leaving the U.S. prior to the expiration of the current period of authorized stay, USCIS recognizes options for those temporarily in the U.S. on a non-immigrant visa who cannot leave the country due to COVID-19 travel restrictions; namely, seeking to extend the visa.

Extension of Status

Certainly, the best option for those holding a non-immigrant visa is to apply to extend status prior to the expiration of the current authorized period.  If it is not possible to apply prior to the expiration of the current I-94, USCIS may take into consideration the extraordinary nature of the circumstances that prevented applying on time.

Note the length of the delay in submitting the application must be justified by the reason for the delay, and credible proof must be submitted. Thus, it will be in an applicant’s best interest to apply for an extension as soon as possible.

Also note there are restrictions on the amount of time an applicant can remain in the U.S. while an application to extend or change status is pending.  If the application is ultimately denied, current regulations instruct that the application is denied retroactively to the date of the expiration of the original authorized period of stay.  That timeframe can be critical, since, unless further accommodations are made, the applicant may have acquired unlawful presence making them inadmissible in the future.  Monitor timeframes and dates carefully.

What about people present on VWP/ESTA who cannot extend their status?

Those present in the U.S. on the Visa Waiver Program (VWP/ESTA) are not permitted to apply to extend or change their status.  However, current regulations allow those visitors who are unable to leave the country due to an emergency, such as COVID-19, to request “Satisfactory Departure” of 30 days.  If that visitor is still unable to leave the country with the 30-day limit approaching, USCIS may consider authorizing an additional 30 days.

Note that Satisfactory Departure technically is still considered an overstay but prevents triggering the penalties that would be incurred without it.  Satisfactory Departure is not automatic and must be requested and approved.

If you need legal counsel to determine how best to proceed under the current conditions, please contact immigration attorney Barbara Marcouiller.  During the COVID-19 crisis, Barbara is available to meet with clients by phone and through computer chat to help clients with immediate needs, as we generally do with clients worldwide.