Due to the rapid spread of the coronavirus pandemic (COVID -19) many countries have restricted travel or closed their borders. This, of course, will affect many foreign nationals who are currently in the U.S. on nonimmigrant visas such as visitor visas, business visas, and employment-based visas.
Upon entrance into the U.S., all foreign nationals are given a specific period of time to stay in the U. S. If a foreign national remains in the U.S. past their period of lawful stay, they are considered to be out of status or an overstay. With flights being canceled and restrictions on travel, many foreign nationals are trying to figure out how to extend and maintain their legal status in the U. S.
Although we are in unprecedented times, foreign nationals still must follow all rules associated with their visa status. In most cases, the foreign national can file a request for an extension of their status with USCIS. However, USCIS must receive the application before the status expires. If the foreign national files before the period of a lawful stay expire, they are protected while USCIS makes a decision. On average, USCIS makes a decision on a request between 4 to 6 months. But the foreign national does not have to wait in the U.S. for USCIS to make a decision on their case if the situation that precipitated the request changes, i.e. borders open and flights lessen restrictions. The foreign national can return to their home country when the situation permits. However, the key to maintaining status is to file the request before lawful status expires.
For other nonimmigrant visas such as employment-based visas, the foreign national’s employer must file a new petition with USCIS to extend legal status. But some employment-based visa has a limit on the number of years that a foreign national can be on that type of visa. And if that foreign national has reached the limit on the number of years allowed, they cannot file extension. However, they may be able to file for a change status to another type of visa to maintain legal status.
If the foreign national fails to file an extension or change status before their legal status expires, USCIS may still except the request and excuse the delay if there were extreme circumstances beyond the foreign national’s control that prevented them from filing on time. Accordingly, USCIS states that they may excuse the delay in filing (on a case by case basis) if the delay was for what they term “Special Situations” such as natural catastrophe or other extreme situations.
Response to the coronavirus pandemic seems to be changing daily. USCIS along with other government agencies are updating their procedures. If you find yourself in of the above discussed situations, please contact an immigration attorney immediately. The immigration attorneys at Portner and Shure keep up to date on the changing immigration procedures and are available to advise through this situation. Contact our office now.
