USCIS Updates Guidance on Untimely Filed Extension of Stay and Change of Status Requests

U.S. Citizenship and Immigration Services today announced an update to its Policy Manual providing that USCIS, in our discretion and under certain conditions, may excuse a nonimmigrant’s failure to timely file an extension of stay or change of status request if the delay was due to extraordinary circumstances beyond the control of the applicant or petitioner.

The update (PDF, 312.15 KB) clarifies that extraordinary circumstances may include, but are not limited to, where the delay was due to a slowdown or stoppage of work involving a strike, lockout, or other labor dispute, or where the primary reason for the late filing is the inability to obtain a certified labor condition application or temporary labor certification due to a lapse in government funding supporting those certifications.

This Policy Manual update addresses a commitment made in the report by the H-2B Worker Protection Task Force (see p. 6-7 of the report (PDF) – Action 1.1.). The report requires that DHS clarify that a worker who has remained in the United States after the expiration of their period of admission identified in their Form I-94 due to a workplace labor dispute will not be negatively affected solely for these reasons when applying for “a subsequent visa” or a change of immigration status.

While USCIS does not issue visas, we do adjudicate extension of stay and change of status requests. Generally, certain nonimmigrants present in the United States who are admitted for a specified period, or their petitioners, may request an extension of their admission period in order to continue to engage in those activities permitted under the nonimmigrant classification in which they were admitted. Also, certain nonimmigrants present in the United States, or their petitioners, may seek to change their status to another nonimmigrant classification if they meet certain requirements.

In general, USCIS does not approve an extension of stay or change of status for a person who failed to maintain the previously accorded status or where such status expired before the filing date of the application or petition. If certain conditions are met, however, USCIS, in its discretion, may excuse the failure to file before the period of authorized stay expired.