Important CIS update
Last week, the USCIS announced an update on extension of stay and change of status applications providing that the said agency, in its discretion and under certain conditions, may excuse a non-immigrant’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 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 which requires DHS to 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.
Adjudication for extension of stay and change of status requests are within the purview of USCIS. Generally, certain non-immigrants 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 non-immigrant classification in which they were admitted. Also, certain non-immigrants present in the United States, or their petitioners, may seek to change their status to another non-immigrant 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 expires.
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It is important for those intending to file the extension of stay or change of status that they must plan in advance on how they go about their application. There are a lot of factors to be considered for this type of submission such as timing of the application, reason for the extension, eligibility for the new status being requested, and possible immigration consequences when the application is denied.