The COVID-19 crisis has unquestionably affected all aspects of our society, resulting in shutdowns across the country and closures of important government agencies including but not limited to many immigration courts and USCIS offices. We have been receiving frantic phone calls from individuals who are here on non-immigrant visitor’s visas as well as ESTA. They are understandably concerned what their options are if they are not able to safely depart to their countries and end up staying past their authorized period of stay.
As of now, USCIS has not issued any formal protocol or policy regarding B1/B2 entrants who remain in the US with imminent departure dates who are not able to leave. In general, individuals who are admitted as visitors are normally admitted up to six months (subject to the discretion of the Customs and Border Protection Officer inspecting them). This can be verified by accessing the I-94 on CBP’s website. If the foreign national overstays his/her period of stay, there are several consequences. For one, the visitor’s visa is automatically canceled, even if the person has overstayed by one day. Secondly, the person will begin accruing what is called “unlawful presence.” Unlawful presence is an important legal term of art because the accumulation of unlawful presence can result in three- or ten-year bars from returning once the individual has departed the US. If an individual is still currently within his/her authorized period of stay but cannot reasonably leave due to the COVID19 crisis (ie., the airline has canceled flights or he/she is experiencing flu-like symptoms), he/she may want to strongly consider filing an extension of stay request on Form I-539 as soon as possible before the I-94 expiration date. Once and if the extension request is timely filed with USCIS, the person will not accrue unlawful presence while the extension request is being considered.
Fortunately, for those who have entered via ESTA from visa waiver countries, the government has indicated that these individuals may request an additional extension of up to thirty days by making a “Satisfactory Departure” request with Customs and Border Protection (CBP). If the request is granted Satisfactory Departure, the individual will legally be allowed to stay past the ninety days that is customarily allowed without penalty. This is critically important because ESTA entrants who overstay their ninety days without permission are subject to immediate removal from the United States without the right to appear before an immigration court.
We continue to monitor the latest developments affecting immigration and will post additional information as it becomes available. If you should have questions regarding your immigration status and what your options are, please contact our office for a phone or video consultation.
The above is general information only and not intended to be construed as legal advice. It does not create an attorney-client relationship. If you have questions, please consult with an attorney.