Volume XXI - April 2020

COVID-19: ITS IMPACT ON YOUR NONIMMIGRANT VISA OR ESTA AND HOW YOU CAN MAINTAIN YOUR STATUS

Patricio Garcia, Attorney

Amid Covid-19, many nonimmigrants or foreign temporary visitors, are presently stranded in the United States and are likely to exceed their authorized period of stay. Generally, nonimmigrants must depart the United States before their authorized period of admission expires; otherwise, this may constitute a failure to maintain the terms of their nonimmigrant status.[1]

What should I do If my authorized period of stay is about to expire? The Department of Homeland Security (DHS) is not granting automatic extension of stay, rather it is the nonimmigrant’s responsibility to take steps to avoid overstaying their status.

How can I extend my stay in the United States? You must file a request with U.S. Citizenship and Immigration Services (USCIS) on the Form I-539, Application to Extend/Change Nonimmigrant Status before your authorized stay expires.

What if due to COVID-19 my period of authorized stay in my I-94 has already expired? You should still file Form I-539, albeit you must explain why the restoration of status ought still be granted based on “extraordinary circumstances” under 8 CFR § 214.1(c)(4). See “Special Situations” policy last updated by USCIS on 10/25/2019.[2] However, this is merely a discretionary remedy, and applied on a case-by-case basis, and only upon the nonimmigrant’s request.

What if I am in the US under a valid Electronic System for Travel Authorization (ESTA) under the Visa Waiver Program (VWP), which can’t be extended or changed? Under 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. Please see 8 CFR 217.3(a). For those 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. To request satisfactory departure from USCIS, a VWP entrant should call the USCIS Contact Center at 1-800-375-5283.[3]

What are the consequences if I failed to maintain status? If you remain in the United States longer than authorized, you may be barred from returning and/or you may be removed (deported) from the United States. If you “overstay” you face a minimum of three-year “unlawful presence” bar to reentry for overstay periods of more than six but less than twelve months, or ten years for overstays of a year or more, under Immigration and Nationality Act § 212(a)(9)(B)(i). 

Patricio Garcia is a senior associate in our firm’s Orlando office who regularly counsels clients on a variety of immigration related issues including visas, citizenship and naturalization matters and detention and removal litigation.

If you have further questions or need help with any immigration matters, please contact our office.

[1] 8 CFR 214.1(a)(3)(iii).

[2] https://www.uscis.gov/humanitarian/special-situations

[3] COVID-19 Delays in Extension/Change of Status Filings, available at https://www.uscis.gov/news/alerts/covid-19-delays-extensionchange-status-filings, last Updated: 04/13/2020

This article is for informational purposes only and you should seek professional legal advice before taking any action based on this article.  Further, this information is subject to change due to the rapidly changing legal, political and business environment.

 Like us on Facebook to see all that we do in the community!