USCIS's Special Situations page describes long-standing, pre-existing options that might be of use in an emergency situation. The page states: "USCIS has discretion to take the following measures on a case-by-case basis upon request, if you have been affected by a natural catastrophe or other extreme situation."
USCIS occasionally leverages the content on the Special Situations page by linking to it in reminder messages crafted for specific emergency events. For example, see USCIS's archive page on Previous Special Situations.
The options on USCIS's current Special Situations page include:
- Extension of Stay (EOS) and Changes of Status (COS) Applications
- Late Filing of an EOS or COS Application
- Fee Waivers
- Employment Authorization
- Document Replacement
- Expedited Processing
- Explaining a Failure to Appear for an Interview or Appointment or to Respond to an RFE
Remember that these options generally do not establish eligibility outside regulatory restrictions, and are standard "evergreen" case-by-case options that are grounded in long-standing regulatory and policy provisions that were not created for particular emergency situations. Let's consider each of them.
Extension of Stay (EOS) and Changes of Status (COS) Applications, and the possibility of filing these late
Some nonimmigrants whose nonimmigrant status is currently valid might be eligible for a standard extension of stay (EOS) or change of status (COS), if they qualify under standard rules for those benefits. USCIS also reminded individuals of these pre-existing options regarding extension of stay or change of status in its April 13, 2020 COVID-19 Delays in Extension/Change of Status Filings alert, particularly for individuals who approach the end of their current nonimmigrant status.
The important thing to remember is that the options that USCIS lists on the Special Situations page generally do not alter the standard rules of eligibility. For example, you cannot file for an extension of stay on Form I-539 to extend H-1B status, a J-1 exchange visitor subject to the INA 212(e) two-year home residence requirement is not eligible for a change of status unless a 212(e) waiver is granted, etc. Also remember not to conflate related but very different concepts, e.g. there are important differences between nonimmigrant status, SEVIS status, and visa status.
Regarding the option of applying for EOS or COS late (beyond the applicant's currently authorized period of stay), USCIS has the authority to accept a late-filed EOS or COS application under 8 CFR 214.1(c)(4) (extension of stay) and 8 CFR 248.1(b) (change of status). USCIS also reminded the public of this in its April 13, 2020 COVID-19 Delays in Extension/Change of Status Filings alert. Although a particular emergency situation will be a factor that USCIS will consider in late filing scenarios, the applicant's burden of proof is still high and USCIS makes decisions on a case-by-case basis. An applicant must still demonstrate that:
- The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner;
- The length of the delay was reasonable and commensurate with the circumstances;
- The applicant has not done anything else to violate his/her nonimmigrant status (such as work without USCIS approval);
- The applicant is still a nonimmigrant (i.e., he/she is not trying to become a permanent resident of the United States); and
- The applicant is not in formal proceedings to remove (deport) him/her from the United States
Visa Waiver Program entrants are not eligible for an extension of stay or change of status. However, USCIS reminded VWP entrants in its April 13, 2020 COVID-19 Delays in Extension/Change of Status Filings alert that, "under current regulations, if an emergency (such as COVID-19) prevents the departure of a VWP entrant, USCIS in its discretion may grant a period of satisfactory departure for up to 30 days. Please see 8 CFR 217.3(a)."
Applicants who need to assess the risks involved and who need assistance in meeting the high burden of proof should consult an experienced immigration attorney.
Fee Waivers
The USCIS Special Situations page says, "If you are unable to pay the fee for a USCIS service or benefit, you may request a fee waiver for certain forms by filing Form I-912, Request for Fee Waiver." Again, the possibility of requesting a fee waiver is a long-standing option for individuals whose financial situation warrants the request, and no special COVID-19 blanket fee waivers have been authorized. Applicants for a fee waiver must still qualify on a case-by-case basis, and can only request a filing fee waiver for the forms and situations listed in the Form I-912 Instructions. For USCIS fee waiver policies currently in effect see the USCIS Adjudicator's Field Manual (AFM) Chapters 10.9 and 10.10.
Employment Authorization
The USCIS Special Situations page lists two F-1 employment authorization programs under 8 CFR 214.2(f)(9):
- Severe Economic Hardship to F-1 Students Caused by Unforeseen Circumstances. Regulations at 8 CFR 214.2(f)(9)(ii)(C) allow a student in good standing who has been in F-1 status for one full academic year to apply to USCIS for off-campus employment authorization if they demonstrate "that the employment is necessary to avoid severe economic hardship due to unforeseen circumstances beyond the student's control," and that on-campus employment "is unavailable or otherwise insufficient to meet the needs that have arisen as a result of the unforeseen circumstances." Application is made on Form I-765 accompanied by the proper filing fee, an I-20 issued after the DSO recommends this employment type in SEVIS, and documentation that clearly establishes the student's unforeseen economic hardship. Employment under this provision cannot begin until the start date of an EAD issued by USCIS, after USCIS approves the application. Although emergency situations (like COVID-19-related complexities or the aftermath of a natural disaster) that an individual applicant is facing might be a factor that USCIS considers, applicants must still fully document their individual financial situation, and USCIS will consider applications for this type of employment authorization only on a standard, case-by-case basis.
- Special Student Relief. Special Student Relief, is available only if DHS publishes a notice in the Federal Register to activate the benefit for a specific group. DHS has not published a Special Student Relief notice for COVID-19, and so Special Student Relief is not currently an option for F-1 students on that basis alone. Please see NAFSA's page on Special Student Relief for a list of currently active Special Student Relief notices.
Document Replacement
The standard methods of applying for a lost, stolen, or destroyed green card, Form I-94, or EAD card are available. USCIS has instituted no special COVID-19 exceptions.
Expedited Processing
Applicants who believe they might qualify for USCIS considering their request for a service or benefit more quickly can make that request when filing or after filing. Read more about expedited processing on the USCIS website. No specific COVID-19 provisions have been published. Refer to USCIS Policy Manual, Volume 1, Part A, Public Services, Chapter 5, Requests to Expedite Applications or Petitions [1 USCIS-PM A.5] for USCIS's standard expedite policies that a requester would be expected to meet.
Explaining a Failure to Appear for an Interview or Appointment or to Respond to an RFE
The Special Situations page states, "If you did not appear for a scheduled interview or appointment, or did not submit evidence or respond to a notice or request in a timely manner for reasons directly tied to the special situation, you may show how the disrupting event affected your ability to appear for interview or submit documents as required."
Note: USCIS extended until January 24, 2023 the COVID-19 flexibilities it established for responses to Requests for Evidence (RFEs) and other similar response-based notices and requests, and filing date requirements for filing Form I-290B, Notice of Appeal or Motion. See NAFSA's page USCIS Flexibility for Responding to Agency Requests During COVID-19.