Delay in Change or Extension of Filings Due to Extraordinary Circumstances
After aliens enter into the United States with nonimmigrant visas, generally, they will be authorized to stay for a specific length of time in the United States. They are supposed to depart before the authorized date. However often times, somealiens are not able to depart before the authorized date for various reasons. For example, a visitor (B status) might want to extend his/her travel plan because he/she wants to visit some other places; an H1B worker exhausts his H1B, but before leaving the United States, he decides to travel and visit some friends. In similar scenarios, nonimmigrants can submit I-539 form to change or extend their statuses.
Form I-539 can be used by US nonimmigrants to change or extend their statuses. A proper I-539 allows the applicant to stay in the United State after his/her authorized stay expires. To change/extendhis/her status, the applicant must submit I-539 application before his/her period of previously authorized status expires. Under 8 CFR 214.1.c.4 and 8 CFR 248.1.(c), USCIS may accept I-539 applications submitted after the applicant’s previously authorized stay period has expired if the failure to maintain status may be excused, where is demonstrated at the time of filing that:
1) The failure to file a timely application was due to extraordinary circumstances beyond the control of the applicant, and USCIS finds the delay commensurate with the circumstances;
(2) The applicant has not otherwise violated his or her nonimmigrant status;
(3) The applicant remains a bona fide nonimmigrant; and
(4) As a condition for approval, an applicant seeking to change status must demonstrate that he or she has not received public benefits for more than 12 months in the aggregate within any 36-month period. (New policy effective after October 15, 2019)
In general, if an applicant fails to file I-539 application timely, USCIS will reject the I-539 application directly. Along with the rejected package that USCIS returns, it will attach a green paper stating the application is not yet considered properly filed and the applicant has to meet all the requirements as of the date of a new filing. If the applicant has already been out of status when he/she receives the rejection notice and meet the above requirements under 8 CFR 214.1.c.4 or 8 CFR 248.1.(c), he/she may request to excuse the delay due to extraordinary circumstances, but the standards for USCIS to accept the request are very strict.
Another way is to file a new I-539 application with a request of using the old filing date based on Nunc Pro Tunc, but again, it is extremely rare for USCIS to accept the request.
In consideration of the above, if an I-539 is rejected by USCIS, the applicant should leave the United States ASAP to avoid unlawful presence.
On April 13, the Department of Homeland Security (DHS) addressed that COVID-19 pandemic results in immigration-related challenges and stated that it would analyze the issues and leverage USCIS resources to effectively address these challenges within its existing authorities. Specifically, the update discussed the scenario that nonimmigrants’ unexpected stay in the United States beyond their authorized period of stay due to COVID-19 and proposed applying for extensions as a solution. It further emphasized USCIS’s flexibility for late application, reminding nonimmigrants that it can consider delays caused by COVID-19 pandemic when deciding whether to excuse delays in filing documents based on extraordinary circumstance.
Our firm recently represented an I-539 case with late filing issue. The I-539 applicant came to the United Status with a B visa to visit his family and planned to apply for status extension because of the COVID-19 outbreak. His B status wasexpired for almost two months when he contacted our firm to represent him. The delay was resulted from two reasons. First, the expiration date on his I-94 form is earlier than the authorized stay date that CBP officer stamped on his passport. He was not aware of the difference. Second, the applicant’s daughter prepared for an I-539 form on behalf of him because he does not know English. However, his first application package was rejected because of a mistake in the form.
Fortunately, both the causes were beyond the applicant’s control and we quickly resubmitted the application. Our attorney made a request to excuse the delayed filing in the new package. The case was finally accepted by USCIS. If the case is approved by USCIS, the applicant’s overstay will be justified.
As a general rule, extraordinary circumstances should be beyond control of the applicant. Common reasons include shipping delay, mishap made by people other than the applicant, and misunderstanding or miscommunication from other people. The most updated policy specifies that reasons related to COVID-19 shall be deemed as extraordinary circumstances. If an applicant’s delayed filing is caused directly or indirectly by COVID-19, he/she may request USCIS to accept the application based on the rule. USCIS tends to be lenient in accepting these requests in this special pandemic period.
If you plan to extend or change status in the United States, properly filing I-539 is very important. It is directly related to your legal immigrant status in the United Status and can be complicated. If an I-539 is not filed properly, it will probably lead to unlawful presence. When 180 days or more ofunlawful presence has been accrued, he/she will be barred from reentering the States for 3 years. When 1 year or more of lawful presence has been accrued, he/she will face a10-year bar (For more information about unlawful presence, please click here). Thus, if you face any problem or uncertainty in I-539 filing, we suggest you consult with an immigration lawyer for professional advice. At Zhang & Associates, we have successfully represented thousands of similar cases. Our experienced immigration attorneys are here to offer legal help and minimize any and all confusion or challenges. If you have a time sensitive case, we urge you to contact us soon. If you would like to contact us, please email us at info@hooyou.com.
Reference
8 CFR 214.1.c.4:
An extension of stay may not be approved for an applicant who failed to maintain the previously accorded status or where such status expired before the application or petition was filed, except that failure to file before the period of previously authorized status expired may be excused … where it is demonstrated at the time of filing that:
8 CFR 248.1.(c):
Except in the case of an alien applying to obtain V nonimmigrant status in the United States under §214.15(f) of this chapter, a change of status may not be approved for an alien who failed to maintain the previously accorded status or whose status expired before the application or petition was filed, except that failure to file before the period of previously authorized status expired may be excused in the discretion of USCIS, and without separate application, where it is demonstrated at the time of filing that:
(1) The failure to file a timely application was due to extraordinary circumstances beyond the control of the applicant or petitioner, and USCIS finds the delay commensurate with the circumstances;
(2) The alien has not otherwise violated his or her nonimmigrant status;
(3) The alien remains a bona fide nonimmigrant; and
(4) As a condition for approval, an alien seeking to change nonimmigrant classification must demonstrate that he or she has not received, since obtaining the nonimmigrant status from which he or she seeks to change, one or more public benefits, as defined in 8 CFR 212.21(b), for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months). For purposes of this determination, DHS will only consider public benefits received on or after October 15, 2019 for petitions or applications postmarked (or, if applicable, submitted electronically) on or after that date. This provision does not apply where the nonimmigrant classification from which the alien seeks to change or to which the alien seeks to change is exempt from section 212(a)(4) of the Act, or where that section has been waived.
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Former U.S. Consular officer, Attorney Sechyi Laiu joined Zhang & Associates, P.C. on June 26, 2017
At Zhang & Associates, P.C., Attorney Laiu specializes on Consular Processing cases and business development. Attorney Laiu also focuses on TN visas, E visas, CBP administrative proceedings (monetary confiscation, deferred inspection), and overseas financial compliance.
Prior to joining Zhang & Associates, P.C., Attorney Laiu worked for the U.S. Department of State as a Chinese and Portuguese speaking diplomat. As a consular-coned officer who served in Vancouver (Canada), Shenyang (P.R. China), and Rio de Janeiro (Brazil), Attorney Laiu processed over 30,000 visa cases and worked in every section of Consular Affairs overseas (Fraud Prevention Unit, Immigrant Visas, Non-Immigrant Visas, and American Citizen Services).
He will use his experience and expertise to deliver the highest quality of service to our clients.
Founded in 1996, Zhang & Associates, P.C. offers legal services to clients worldwide in all aspects of U.S immigration law. We have successfully handled over ten thousand immigration cases.
At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, EB-5, PERM, I-485 I-130, H-1B, O, L and J cases. In the past
twenty-two years, we have successfully helped over ten thousand clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.
Zhang & Associates, P.C.
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(07/31/2020)