USCIS Grants Greater Flexibility in Late Immigration Applications to Change or Extend Nonimmigrant Status

U.S. Citizenship and Immigration Services (USCIS) has implemented a significant policy update to its Policy Manual, offering greater flexibility for nonimmigrants who encounter unforeseen delays when filing for extensions of stay or changes of status. This announcement, published on January 24, 2024, clarifies that USCIS may allow for late filings to extend or change one’s nonimmigrant visa status caused by extraordinary circumstances beyond the applicant’s control.

Generally, USCIS will not approve an extension of stay or change of status for the person who failed to maintain their nonimmigrant status or whose status has expired before the filing date of the application or petition (the Form I-539 or the Form I-129).  Such nonimmigrant status can include H-1B workers, H-4 spouses, F-1 students, J-1 exchange visitors, O-1 aliens of extraordinary ability, E-2 treaty investors and L-1 intracompany transferees.

However, USCIS has exercised its discretion in excusing the failure to file before the person’s expiration date or despite the violation of their nonimmigrant status where the requester demonstrates 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.

In particular, USCIS has broadened its definition of extraordinary circumstances to include, but not be limited to, situations like slowdowns or stoppages in work due to labor disputes, or delays in obtaining labor certifications caused by government funding lapses.

This Policy Manual update offers discretionary leniency, not a guarantee of approval. Strong evidence supporting your case remains crucial.

Please contact Attorney Monique Kornfeld for assistance with filing extension of stay or change of status.