USCIS Updates Policy on Untimely Filed Extensions of Stay and Change of Status Applications

Quick Hits

• USCIS has updated its policy manual to formalize the agency’s ability to excuse untimely filed extensions of stay and change of status requests.
• The policy update clarifies the meaning of “extraordinary circumstances.”

As a rule, USCIS does not approve an extension of stay or change of status request where an applicant has failed to maintain his or her nonimmigrant status. The USCIS Policy Manual states that the agency, “in its discretion,” may excuse such a failure where the applicant can show that:

• “The delay was due to extraordinary circumstances beyond the person’s control”;
• “The length of the delay was commensurate with the circumstances”;
• “The person has not otherwise violated their nonimmigrant status”;
• “The person remains a bona fide nonimmigrant”; and
• “The person is not the subject of removal proceedings and, in the case of extensions of stay, is also not the subject of deportation proceedings.”

The update to the USCIS manual makes prior practice policy and clarifies the meaning of “extraordinary circumstances” beyond the control of the applicant, explaining that such circumstances “may include, but are not limited to,” where the delay was “due to a slowdown or stoppage of work involving a strike, lockout, or other labor dispute,” or “[w]here the primary reason for the late filing is the inability to obtain a certified labor condition application or temporary labor certification due to a lapse in government funding supporting those adjudications.”

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and will provide updates on the Immigration blog as additional information becomes available.

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