U.S. Citizenship and Immigration Services (USCIS) has announced a significant update to its Policy Manual regarding nonimmigrant extension of stay and change of status requests.
This update, issued today, introduces a provision allowing USCIS to excuse delays in filing these requests under certain conditions if the delay stems from extraordinary circumstances beyond the applicant or petitioner’s control.
Key Points of the New Policy
The revised Policy Manual specifies that “extraordinary circumstances” may encompass various situations, including but not limited to:
Workplace Disputes: Instances where delays are caused by a slowdown, stoppage of work, strike, lockout, or other labour disputes.
Government Certification: Delays resulting from the inability to obtain a certified labour condition application or temporary labour certification due to a lapse in government funding supporting these certifications.
USCIS may excuse late filing of extension of stay or change of status requests for H-2B workers under certain circumstances.
This policy change fulfils a commitment made in the H-2B Worker Protection Task Force report.
It aims to protect workers from facing negative consequences in future visa or status applications solely due to labour dispute involvement.
USCIS clarifies its role: While visa issuance remains with the Department of State, USCIS adjudicates extension and status change requests for nonimmigrants like H-2B workers.
The general policy remains: Timely filing is still encouraged, and late applications face disapproval unless extenuating circumstances apply.
Impact On H-2B Workers
This policy update provides relief for H-2B workers who faced unforeseen obstacles in maintaining their legal status due to labour disputes. They can now potentially seek leniency if they meet the specified criteria. It also signifies a commitment to protecting worker rights and ensuring fair treatment within the immigration system.
USCIS’s Role and Processes
While USCIS doesn’t handle visa issuance, it does adjudicate extension of stay and change of status requests. Nonimmigrants in the U.S. are admitted for a specified period, or their petitioners can request an extension to continue activities permitted under their nonimmigrant classification.
Similarly, certain individuals or their petitioners may seek to switch to another nonimmigrant classification if they meet specific requirements.
USCIS Discretion and Conditions
Under normal circumstances, USCIS doesn’t approve extension of stay or change of status requests for individuals who failed to maintain their previously accorded status or whose status expired before the application or petition filing date.
However, the update emphasizes that USCIS, at its discretion, may excuse such failures to file before the authorized stay period expires, given certain conditions are met.
This update reflects USCIS’s commitment to ensuring fairness and flexibility within the immigration system, particularly in light of unforeseen challenges beyond individuals’ control. It aims to provide relief to those facing genuine hardships while maintaining the integrity of immigration processes.