Below is relevant information for individuals who entered the United States with temporary permission who now cannot depart due to COVID-19. It is important to remember that COVID-19 policies are fluid and rapidly developing.
Please note that the American Immigration Lawyers Association has filed a complaint against United States Citizenship and Immigration Services (“USCIS”) seeking the immediate suspension of immigration benefit deadlines and the maintenance of status for nonimmigrants in the United States amid COVID-19.
In general, individuals who overstay their period of admission, accrue unlawful presence, and depart the United States are barred from entering the United States for 3 or 10 years. Individuals who depart the United States after having accrued more than 180 days but less then 1 year of unlawful presence during a single stay are barred from entering the United States for 3 years. Individuals who depart the United States after having accrued one year or more of unlawful presence during a single stay are barred from entering the United States for 10 years. There are exceptions to the 3-year and 10-year unlawful presence bars, but those who overstay their period of admission should be aware of the risks of triggering either bar.
VWP and ESTA
Individuals admitted under the Visa Waiver Program (“VWP”) with permission through the Electronic System for Travel Authorization (“ESTA”) who find themselves unable to depart before their current period of admission will end because of COVID-19 related issues can request Satisfactory Departure for up to 30 days.
Pursuant to Title 8 Code of Federal Regulations (CFR) Section 217.3(a), if an emergency prevents an individual admitted under the VWP from departing the United States within the period of authorized stay, a period of Satisfactory Departure may be granted not to exceed 30 days – provided that the request is made during the period of admission and the individual is still in status at the time of the request. If departure is made within the period of approved Satisfactory Departure, the individual is regarded as having made a timely departure without overstaying the allowed time. In emergent circumstances, requests for Satisfactory Departure may be granted if the individual is out of status but can prove the intent was to depart timely.
Individuals admitted under the VWP may seek Satisfactory Departure by contacting any local Customs and Border Protection (“CBP”) Port of Entry or Deferred Inspection Site or the USCIS Contact Center. Individuals should be prepared to provide their passport number when submitting their request for Satisfactory Departure. We recommend individuals first contact USCIS, and then a CBP Deferred Inspection Site to request Satisfactory Departure.
CBP recently announced that individuals admitted under the VWP who have been granted Satisfactory Departure may apply for an additional 30-day extension of their admission period if they remain unable to depart the United States due to COVID-19. The extension grants flexibility to VWP travelers who have difficulty returning to their countries due to COVID-19 related travel restrictions, flight cancellations or illness. Individuals who are granted Satisfactory Departure will have an additional 30 days to depart the United States after their lawful period of admission concludes.
Notably, there is no provision under U.S. law to extend the stay of an individual admitted under the VWP. The only form of relief for an individual admitted under the VWP who is unable to depart timely due to emergent circumstances is the exercise of Satisfactory Departure. An overstay of the allowed time will result in the cancelling of VWP privileges. These individuals wishing to return to the United States in the future will be required to apply for a visa.
While there is no other extension or change of status available for individuals admitted under the VWP, it is possible for individuals within the jurisdiction of the Ninth Circuit to adjust status based on an immediate relative visa petition.
B1/B2 Visa Status Extension
Individuals who entered with a B1/B2 visa can request an extension of status for a variety of reasons with USCIS in order to remain in valid status. If USCIS receives the application before the status expires, the individual is protected because their status is tolled. In the past, these extensions have been liberally granted. It is important for individuals to note that the decision can take 4-6 months which is typically beyond the date the individual is permitted to remain in the United States.
Late Filings or Overstays
In the past, USCIS and the Department of State have sometimes accepted requests from those who file their extension late or overstay due to an emergency situation. The regulations allow for a late filing and a request for USCIS to “backdate” the approval (Nunc pro tunc) in instances where the late filing is not due to the fault of the individual. However, those types of approvals are not always granted. In instances where the individual overstayed the B1/B2 visa and departed, they are not allowed to use the same B1/B2 visa to return to the United States again even in cases where the visa is still valid in their passport. They must return to a U.S. consulate in order to have their visa re-issued. In the past, U.S. consulates have re-issued visas despite overstays when the reason for overstay involved a natural disaster. It is not clear at this time if U.S. consulates will re-issue B1/B2 visas due to flight cancellations and other COVID-19 issues. Only in extreme circumstances should an individual overstay or fail to request an extension past the date of authorized stay.
Individuals who overstay who are eligible for an immediate relative visa petition based on marriage can file to adjust their status. These individuals will be required to demonstrate that the marriage is bona fide, meaning that it was not entered into for the purpose of circumventing immigration law.