Many visitors and temporary workers are facing expiration of their authorized periods of stay in the United States at the same time they are being advised by employers, family, friends and health care providers to limit their exposure to crowded venues such as airports and airplanes.  In addition, some have been immobilized by government-imposed quarantines or travel restrictions. The following is a summary of US Citizenship and Immigration Services (USCIS) guidance posted on April 13, 2020, for nonimmigrant visa holders and Visa Waiver visitors who find themselves unable to timely depart the United States, and supplements Mayer Brown’s March 30 Legal Update “Guidance for Visa Holders and Visitors to Seek Additional Time in the United States Because of COVID-19 Travel Restrictions.”

Available Options

The USCIS guidance notes that most nonimmigrants who have remained in the United States due to travel restrictions stemming from COVID-19 may maintain their lawful standing in the United States by timely filing an application for extension of stay (EOS) or a change of status (COS).

  • Extension of Stay.
    • For temporary workers (e.g., H-1B, L-1, E-3, O-1) who have not yet reached the end of their maximum period of stay, e.g., six years in the case of an H-1B worker, the employer may request extension of status by filing a Form I-129, Petition for a Nonimmigrant Worker, with the appropriate USCIS Service Center, along with supporting documentation, e.g., a Labor Condition Application, for an H-1B worker. The timely filing of an EOS petition automatically extends a nonimmigrant’s status and work authorization for up to 240 days beyond the expiration of status date on Form I-94.
    • Dependent family members and visitor visa holders should file Form I-539, Application to Extend/Change Nonimmigrant Status.
    • In assessing whether the nonimmigrant visa category permits EOS filing, three questions should be considered:
      • Is the visa category that is due to expire subject to an upper limit – i.e., a maximum period of stay?  An H-1B visa holder is subject to a six-year maximum, while an L-1 visa holder will be subject to a seven-year maximum, for executives or managers in L-1A visa status, or, alternatively, a five-year maximum, for specialized knowledge workers in L-1B status.  An O-1 visa holder, however, is not subject to any formal ceiling, even though the current period of stay may be set to expire.
      • If the visa category is subject to a formal ceiling, and the individual is approaching the ceiling, does the individual have days spent outside the United States that could be recaptured in an extension filing?  An H-1B visa holder who is reaching the facial maximum of six years, but has had 30 days of travel every year during the six-year period, would be able to recapture 180 days of time in an extension of the H-1B status.  In any such instance, proof of travel may include credit card receipts, hotel stays, flight information, and actual entry-exit stamps in the passport.
      • If the individual is eligible for an extension of status, will the terms and conditions of the visa category need to be maintained or are they subject to change?  If the terms and conditions are changing, including worksite changes, evaluation of the need to notify (H-1B posting of LCA) or amend status is important.
  • Change of Nonimmigrant Status.
    • Those nonimmigrants who have reached their maximum period of stay in the US as workers may wish to apply for COS, for example to that of a business visitor (B-1) or tourist (B-2) to allow some time for the travel restrictions to ease before they are in a position to depart.  COS to B-1 or B-2 requires adherence to the visitor terms and conditions, however, which allow individuals to remain in the United States and engage in specific activities (e.g., business meetings for B-1 status) but not productive employment.
    • In some cases, COS to another work status, e.g., E-2 (treaty investor), E-3 (specialty occupation), O-1 (extraordinary ability), or to that of a student (F-1) or a trainee (H-3 or J-1), may be an option.  Filing of the COS permits the visa holder to remain in the United States, but the petition must be granted before the beneficiary may commence employment or school.  Terms and conditions of the new status must be maintained.
    • Change of status to these categories requires either an employer petition or the endorsement of an authorized school or training sponsor.
    • Unlike EOS applications, COS does not provide any right to work during the pendency of the COS application.  The filing of the COS application does, however, allow the individual to remain in the United States pending adjudication of the application.
    • Dependent family members and visitor visa holders should file Form I-539, Application to Extend/Change Nonimmigrant Status.
  • Flexibility for Late Applications.
    • USCIS notes that it has the discretion to excuse an untimely delay in submission of a request for EOS or COS occasioned by extraordinary circumstances beyond the requestor’s control (including COVID-19), so long as the delay is reasonable, and the visa holder has not worked without authorization, remains a legitimate nonimmigrant, and is not subject to removal proceedings.
  • Flexibility for Visa Waiver Program Entrants Unable to Depart Due to COVID-19.
    • Each year more than twenty-two (22) million individuals from thirty-nine (39) countries visit the United States under the US Visa Waiver Program (VWP).  VWP entrants are limited to a 90-day period of stay.
    • Extensions of stay and change of status normally are not available to VWP entrants; however, if an emergency such as COVID-19 prevents a VWP entrant from departing from the United States within their period of authorized stay, USCIS may, in its discretion, grant a period of satisfactory departure not to exceed 30 days pursuant to 8 C.F.R. 217.3(a).
    • In its April 13, 2020 guidance, USCIS advises that VWP entrants not able to depart within the 30 days initially approved because of COVID-19 related issues may request an additional 30 days within which to depart.
    • To request satisfactory departure from USCIS, a VWP entrant should call the USCIS Contact Center.
    • This VWP guidance supersedes that issued by US Customs and Border Protection (USCBP) at certain ports of entry last month.

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