USCIS Provides Updated Guidance on Late Filed Extension of Stay and Change of Status Requests

Posted on Feb 03, 2024

On January 24, 2024, U.S. Citizenship and Immigration Services (USCIS) updated its Policy Manual, stating that it may excuse a nonimmigrant’s late filing for an extension of stay or change of status under specific conditions, if the delay was due to extraordinary circumstances beyond the applicant’s control.

The update clarifies that extraordinary circumstances are defined to include situations like a work slowdown, strike, lockout, or labor dispute. It also mentions that late filing may be excused if it’s because of difficulties obtaining a certified labor condition application or temporary labor certification due to a government funding lapse.

This change is in response to a commitment outlined in the report by the H-2B Worker Protection Task Force. The report requires the Department of Homeland Security (DHS) to make it clear that a worker staying in the U.S. after their authorized period due to a workplace dispute will not face negative consequences when applying for a new visa or change of immigration status.

While USCIS does not issue visas (a responsibility assigned to the U.S. Department of State), it handles extension of stay and change of status requests that are filed using Form I-539.  Generally, nonimmigrants in the U.S. for a specific period can request an extension to continue their permitted activities. Also, those in the U.S. can seek to change their status to another nonimmigrant classification if they meet certain requirements.

Typically, USCIS does not approve extensions or changes for individuals who did not maintain their previous status or whose status expired before filing the application. However, under specific conditions, USCIS may excuse the late filing if certain criteria are met.  This update to the Policy Manual confirms that USCIS can and will use its discretionary authority as a remedy under certain very specific circumstances.

If you need assistance with filing an I-539 Application to Change or Extend Status, contact U.S. Immigration Lawyer Sean D. Hummel to schedule a consultation.

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