USCIS Updates Policy Manual Regarding Untimely Filed Extensions of Stay and Change of Status Requests — Visa Lawyer Blog — January 29, 2024

Exciting news! On January 24, 2024, the U.S. Citizenship and Immigration Services (USCIS) announced a new update to its Policy Manual, which clarifies that officers have the discretionary power to 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.

In general, USCIS does not approve an extension of stay or change of status for a person who failed to maintain their 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.

The new update appears in Chapter 4. Section A. Extension of Stay or Change of Status, which includes a new subsection entitled “Requirements to Timely File a Request to Extend Stay or Change Status.”

It clarifies that USCIS may excuse a failure to file before the period of authorized status expires, where the requestor demonstrates in their request that:

• 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; and
• 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.

Examples of what USCIS considers extraordinary circumstances beyond the control of the person may include, but are not limited to:

• Where the person remained in the United States after the expiration of the period of admission due to a slowdown or stoppage of work involving a strike, lockout, or other labor dispute; or

• • This clarifies 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.

• 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 adjudications.

When USCIS allows such discretion and approves the untimely filed application to extend an applicant’s or beneficiary’s stay, the approval is effective as of the date of the expiration of the prior nonimmigrant admission period.

However, when a late filed application for a change of status is approved by USCIS, the change of status takes effect on the approval date.

In both cases, USCIS considers the applicant or beneficiary of an approved untimely change of status request to have maintained lawful status during the period USCIS excused.

For more information about this new update, please click here.

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