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OVID-19 has wreaked havoc on the health and economic systems of the entire world. It has also closed schools and businesses, and brought international travel to an almost total standstill. One segment of the population heavily hit by these closures is the class of individuals here in the United States on temporary visas. This includes those on tourist visas, international students and scholars, and those on temporary work visas. As such, the coronavirus immigration changes of status need to be properly understood.
What is a key impact of the COVID-19 crisis on visa holders?
Many visa holders have essentially become stranded in the United States. Maybe their flight back to their home country was cancelled. Or maybe the country they are traveling back to has closed all of its airports. Or worse yet, maybe the individual has become ill with COVID-19 and it is simply not feasible or safe for them to travel.
The
United States Citizenship and Immigration Services’ (USCIS) website
has a good amount of information regarding the current crisis. As USCIS notes, in general, those individuals who are in the United States pursuant to an entry on a non- immigrant (
i.e.
, temporary) visa, “must depart the United States before their authorized period of admission expires.”
One thing that is very key to note, and which causes some people confusion is what is meant by the “period of admission.” For example, a person may have a tourist visa (B1/B2) in their passport, that is valid for 10 years. But this does not mean that their period of admission is for ten years. When the tourist visa holder was allowed in at the border, they were admitted for a relatively short period of time.
For a tourist visa entry, this is generally a period of six months, although Customs and Border Protection (CBP) officers have the discretion to allow a period shorter than this
.
How do I know when my “period of admission” expires?
In order to have a concrete idea of when your “period of admission” expires, you must get access to your I-94, which is also called the “Departure Record.” Back in the day, individuals entering the United States were often given a white card to fill out (often while still on their flight). The visitor then presented this white card and their passport to the CBP officer, and a stamp was put on the I-94 card, indicating the date of entry, place of entry (
e.g.
, NYC, for New York City, or SFO, for San Francisco), and there was also an indication of how long the individual could stay until (sometimes the stamp and notation was put into the passport itself).
As noted above, for many tourist visa entries, six months was given. Now, in many airports, the passport presentation process has become more automated, and the I-94 is not physically handed to the person, but rather, a record is created online by CBP. The online I-94 indicates the name of the entrant, their date of birth, passport information (number and country of issuance), date of entry, and date until which the stay is authorized.
It is essential that you have access to this I-94 information, and a competent immigration visa attorney can assist you in finding when your period of admission is expiring.
How do I request COVID-19 immigration changes of status?
A competent and experienced visa immigration lawyer can help you ask for an extension of your period of authorized stay. As noted by USCIS, as long as your request, which is made on form I-539, is made during the period of authorized stay, you do not accrue unlawful presence during the pendency of that I-539 request. This is why it is so important to make that request quickly. And it is helpful to document things like cancellation of flights due to the coronavirus, or your own health issues.
What if I was not able to file the I-539 on time because of COVID-19?
Although it is much better to file the I-539 prior to the end of your period of authorized stay, due to the current situation, you may have an argument for “extraordinary circumstances” that can be shown to USCIS to overcome the late filing of the I-539 extension request. It is important that you work with a competent and experienced immigration lawyer so that you can put a case together that presents your stay extension request in a persuasive and efficient manner, and in a way that shows that you took due diligence to file as soon as you possibly could under the circumstances.
What if my I-94 says “D/S?”
D/S is short for “duration of status.” This is most commonly seen with those who entered on a student visa (F1). What the “duration of status” indication means is that as long as the individual is doing all of the things that they are required to do to maintain their student status in good faith, their stay remains valid.
If COVID-19 and the crisis have created a situation for you where you believe you will not be able to maintain your student status, or you have already lost this status, it is essential that you speak to an immigration lawyer immediately, to see what extension of stay options may exist for you.
What can I do if I was admitted on a work-related visa, but got laid off from my job due to the economic crisis?
More and more, we are getting calls and emails from people who were on work visas attached to a specific job, such as the H1B, E-3 or TN visa, and then the COVID-19 crisis hit the economy, and this person has been laid off. The first thing that is important to note is that for work-related visas, an individual is given a grace period of 60 days from the date they lose their job, assuming it doesn’t exceed the period of authorized stay on their I-94. So that is a built in 60 days from the date of the layoff.
Can I stay later than that 60-day grace period? What if I cannot leave the United States in 60 days due to the health crisis?
It may be possible for a person who is within the 60-day work visa grace period to make a request to “change status” to another status, such as the B1/B2 visitor visa status, with a showing of good cause. It is important that such a request be made before the 60-day grace period ends, so it is key to speak to a qualified immigration lawyer right away.
What if I was admitted under the Visa Waiver Program (VWP)?
Under normal circumstances, those who enter on the VWP cannot request extensions of stay or change their status (though they can adjust their status if married to a US citizen). This is what makes the Visa Waiver Program unique. Those on it can enter essentially without a visa, but the downside is there are no extensions or changes to the authorized stay. However, under the current situation, if you entered on the VWP and find yourself in a circumstance where it is simply impossible to leave, then you may be able to request a form of relief called “Satisfactory Departure.”
This request can be made with Customs and Border Protection (CBP), depending on various circumstances. A grant of Satisfactory Departure by CBP can lead to the individual getting up to an extra 30 days to leave the United States without being considered to having violated their VWP entry and exit requirements. And due to the seriousness of the pandemic, it may even be possible to ask for a second Satisfactory Departure grant, if the person who entered on VWP is already on their first grant.
This is, of course, a case by case situation, and it is key to speak to a competent immigration lawyer about your particular set of circumstances.
Can I do these requests by myself or should I hire an immigration lawyer?
We are truly in uncharted territory with the COVID-19 epidemic and crisis. Never in most people’s memory has such a total shutdown of society happened. The effects on the immigration and visa system have been striking. With requests before the Immigration authorities during normal times, it was always best to have an
experienced immigration lawyer on your side
. Now, with a crisis and the stakes even higher, it definitely makes sense to have a competent lawyer to help you through the process.
For additional questions and concerns on immigration law in the midst of the COVID-19 pandemic, you can reach Doug Lightman at (212) 643-0985.
