Updated Guidance on Granting Untimely Requests to Extend or Change Status

On January 24, 2024, the U.S. Citizenship and Immigration Services (USCIS) released updated guidance in the USCIS Policy Manual on untimely filed extensions of stay and change of status requests for certain nonimmigrants. The guidance reiterates that the USCIS has the discretion to excuse an untimely filed extension or change of status request when the delay is due to extraordinary circumstances and clarifies with examples the types of events that may constitute extraordinary circumstances. Of note to H1B employers, the guidance specifies that the USCIS may take into consideration an employer’s inability to obtain a certified labor condition application (LCA) due to a government shutdown as a possible extraordinary circumstance.

Background on Untimely Requests to Extend or Change Status

Generally, the USCIS will deny an application or petition to extend or change status if the foreign national is not in valid status at the time of filing. As discussed in the MurthyDotCom NewsBrief, Filing a Nunc Pro Tunc Request to Reinstate Status in the U.S. (01.Feb.2018), however, the USCIS has the power to grant an untimely filing request if certain requirements are met. The requirements are:

• The delay was due to extraordinary circumstances beyond the person’s control.
• The length of the delay was commensurate with the circumstances.
• The person has not otherwise violated their nonimmigrant status.
• The person remains a bona fide nonimmigrant.
• The person is not the subject of removal proceedings and, in the case of extensions of stay, is also not the subject of deportation proceedings.

Highlights of the Policy Update

The recent USCIS Policy Manual update focuses on the previously mentioned “extraordinary circumstances” requirement. Per the updated guidance, extraordinary circumstances can include, but are not limited to, the following examples. First, where a strike, lockout, or other labor dispute causes a slowdown or stoppage of work, thereby preventing an individual from timely filing an extension or change of status request. And second, where a government shutdown causes a lack of government funding for the U.S. Department of Labor (DOL) and prevents an individual from obtaining the LCA that is necessary for filing an H1B extension or change of status request.

Conclusion

It generally is a nonimmigrant’s responsibility to ensure compliance with certain filing deadlines to maintain status in the U.S. But on occasion, extraordinary circumstances beyond an individual’s control may prevent the timely filing of a request. When such circumstances arise, those who need specific advice are encouraged to consult with a qualified U.S. immigration attorney.

Copyright © 2024, MURTHY LAW FIRM. All Rights Reserved