USCIS Revises Guidelines on Late-Filed Extension of Stay and Change of Status Requests

Release Date: 01/24/2024

U.S. Citizenship and Immigration Services (USCIS) has announced an update to its Policy Manual, outlining that under specific conditions and at the discretion of USCIS, a nonimmigrant's failure to timely file an extension of stay or change of status request may be excused if the delay was caused by extraordinary circumstances beyond the control of the applicant or petitioner.

The updated guidance (PDF, 312.15 KB) specifies that extraordinary circumstances may include, but are not limited to, situations where the delay was a result of a work slowdown, stoppage, strike, lockout, or other labor dispute, or when the primary reason for the late filing is the inability to obtain a certified labor condition application or temporary labor certification due to a government funding lapse supporting those certifications.

This Policy Manual revision fulfills a commitment outlined in the report by the H-2B Worker

Protection Task Force (refer to p. 6-7 of the report (PDF) – Action 1.1.). The report mandates that DHS clarify that a worker staying in the United States after the expiration of their admission period indicated in their Form I-94 due to a workplace labor dispute will not face adverse consequences solely for these reasons when applying for "a subsequent visa" or a change of immigration status.

While USCIS does not issue visas, it does adjudicate extension of stay and change of status requests. Generally, certain nonimmigrants in the U.S. admitted for a specified period or their petitioners may seek an extension of their admission period to continue activities permitted under their nonimmigrant classification. Additionally, certain nonimmigrants or their petitioners may seek to change their status to another nonimmigrant classification, provided they meet specific requirements.

In typical cases, USCIS does not approve an extension of stay or change of status for individuals who failed to maintain their previously granted status or whose status expired before the application or petition filing date. However, if certain conditions are met, USCIS, at its discretion, may excuse the failure to file before the authorized stay period expired.