USCIS's current Special Situations page reminds individuals who are approaching the end limit of their current nonimmigrant status of pre-existing options regarding extension of stay, change of status, and other standard options. These are not new COVID-19 options, but rather options that have existed for decades. Directing the public to these pre-existing options is one of USCIS's "go-to" messages during a crisis. For example, USCIS (and other agencies too) has consistently pointed to these options as one possible form of relief for qualified individuals caught up in an emergency situation like the aftermath of a hurricane or earthquake (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 to be COVID-19-specific. 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 are approaching the end limit of their current nonimmigrant status.
The important thing to remember is that in general, the options listed 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 F-1 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 COVID-19 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.
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. USCIS will accept the 10/15/19 edition of Form I-912 and also accept prior editions or a written request. For USCIS fee waiver policies currently in effect see the USCIS Adjudicator's Field Manual (AFM) Chapters 10.9 and 10.10.
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. Pre-existing provisions 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 he or she demonstrates "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 COVID-19-related complexities an individual applicant is facing might be a factor that USCIS considers, there is no "blanket" COVID-19 policy, applicants must still fully document their individual financial situation, and USCIS will consider applications for this type of employment authorization 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. No Special Student Relief notice is currently active, and 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. Please see NAFSA's page on Special Student Relief for background on that currently unavailable benefit.
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.
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.
Note: On March 20, 2020, USCIS announced that it temporarily suspended premium processing service for all Form I-129 (including cap-exempt petitions) and I-140 petitions until further notice due to COVID-19. In its premium processing suspension notice, USCIS does say that, "While premium processing is suspended, petitioners may submit a request to expedite their petition if it meets the criteria on the Expedite Criteria webpage. It is the petitioner's responsibility to demonstrate that they meet at least one of the expedite criteria. All expedite requests will be reviewed on a case-by-case basis and requests granted at the discretion of USCIS office leadership."
Explaining a Failure to Appear for an Interview or Appointment or to Responde to an RFE
Note: In response to COVID-19, USCIS announced that: "For applicants and petitioners who receive an RFE or NOID dated between March 1 and May 1, 2020, any responses submitted within 60 calendar days after the response deadline set forth in the RFE or NOID will be considered by USCIS before any action is taken." (March 27, 2020)