Update on U.S. Immigration: Late filings, ESTA expiries and USCIS closures

17 April 2020

U.S. Citizenship and Immigration Services (USCIS) has announced several measures to assist nonimmigrants in the U.S. in the face of COVID-19. This bulletin outlines some of those recent announcements.



Late Filings

USCIS has announced that officers will exercise discretion to accept late filings for adjustment of status or extension applications on a case-by-case basis, if the applicant can show extraordinary circumstances due to COVID-19. Typically, an adjustment of status or extension application must be filed before an applicant's current period of admission expires. If the application is timely filed, nonimmigrants generally do not accrue unlawful presence while the application is pending.

USCIS has acknowledged that the COVID-19 pandemic may result in some nonimmigrants unexpectedly remaining in the U.S. resulting in late filings, but that relief may be granted in certain circumstances. Late filings or delays may be forgiven where COVID-19 was the cause. Applicants should include clear and compelling submissions explaining the effect of COVID-19 on the applicant's ability to file a timely application to demonstrate why officers should exercise their discretion in the applicant's favour.

Visa Waiver/ESTA

USCIS and U.S. Customs and Border Protection (CBP) are also showing flexibility for visa waiver/ESTA entrants. Individuals who enter the U.S. through the visa waiver/ESTA program are typically ineligible for adjustments of status or extensions once in the U.S.  Due to the current situation arising from COVID-19, individuals admitted to the U.S. under the visa waiver/ESTA program, whose period of stay will expire in 14 days or less, may contact the port of entry (including deferred inspections offices) and request Satisfactory Departure for up to 30 days. These Satisfactory Departures will be granted on a case-by-case basis. Individuals with an expired period of visa waiver/ESTA admission may also be granted Satisfactory Departure on a case-by-case basis.

USCIS Closures

USCIS has announced that its temporary in-person services (with the exception of limited emergency services) will continue to be suspended at its field offices, asylum offices, and application support centers until May 3, 2020, at the earliest. This suspension is subject to extension if necessary.

What this Means for Businesses and Nonimmigrants

Although there is flexibility and discretion being exercised by USCIS with respect to delayed applications, best efforts should be used to file applications timely to maintain the status of nonimmigrant workers. As the COVID-19 situation is quickly evolving, we recommend that you speak to a U.S. immigration attorney about your situation to get the most up-to-date information and confirm the recommended next steps.

To learn more about U.S. immigration and recent changes due to COVID-19, please contact a member of Gowling WLG's U.S. Immigration Group.


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