Key Points
- USCIS updated its guidance on nonimmigrants’ failure to file a timely change of status or extension of stay request
- USCIS will potentially excuse late filings under certain circumstances beyond the applicant’s or petitioner’s control
- Acceptable conditions for late filings include work strikes, labor disputes, and lockouts
- The inability to obtain a certified labor condition application (LCA) or temporary labor certification due to a lapse in government funding supporting those certifications can also serve as an excuse for delayed filings.
- USCIS reminds applicants that only in certain circumstances, and at USCIS’s discretion, are delayed filings allowed
Overview
US Citizenship and Immigration Services (USCIS) has issued updated guidance in the USCIS Policy Manual on nonimmigrants’ failure to file a change of status or extension of stay request on time.
Under certain conditions and at its discretion, USCIS will excuse late filing for the requests above. The policy specifies that untimely filings may be forgiven under permissible “extraordinary conditions” beyond the applicant’s or petitioner’s control. Those conditions include, but are not limited to, the slowing or stopping of work caused by a lockout, strike, or labor dispute or if the applicant cannot obtain a temporary labor certification or certified Labor Condition Application (LCA) due to a lack of government funding for those certifications.
The updated guidance is reflected in the USCIS Policy Manual. USCIS changed the guidance following a report created by the H-2B Worker Protection Task Force, which instructs the Department of Homeland Security (DHS) to clarify that H-2B workers staying in the US after their Form I-94 validity period expires due to a workplace labor dispute will not be penalized when they apply for a change of status or another visa.
What Should Employers and Applicants Know?
Although USCIS has updated its guidance to provide some exceptions, it reminds applicants that exceptions for late filings will only be granted in some instances and at USCIS’ discretion. USCIS does not typically approve a change of status or extension of stay requests for individuals who failed to maintain their status or whose status expired before they filed a petition or application.
Written by: Lucy Halse, Content Marketing Associate, Envoy Global
Edited by: Dmitri Pikman, Supervising Attorney, Corporate Immigration Partners
Source: US Citizenship and Immigration Services (USCIS)
