USCIS’ Discretion to Consider Extraordinary Circumstances During the Pandemic for H-1B and other Nonimmigrant Workers

We, at Emandi Law Firm, bring you suggestions for uncovering valuable evidence of “extraordinary circumstances” during the COVID-19 pandemic and beyond for submission to USCIS in support of an H-1B petition or other nonimmigrant petition for a foreign worker filed after the beneficiary’s status and any grace period has expired.

When one thinks of mass lay-offs, furloughs, and economic havoc caused by the pandemic, the entire situation would be in and of itself proof of worthy extraordinary circumstances. However, as of the drafting of this practice pointer, USCIS has not announced that it would provide any blanket discretionary relief for those unable to timely file for change or extension of status due to the COVID-19 pandemic.

USCIS has in ints policy the discretion to excuse certain late-filed applications or petitions to change or extend status, even beyond any regulatory “grace periods.” For extension of status applications or petitions, the relevant regulation is 8 C.F.R. 214.1(c)(4), which provides: Timely filing and maintenance of status.

An extension of stay may not be approved for an applicant who failed to maintain the previously accorded status or where such status expired before the application or petition was filed, except that failure to file before the period of previously authorized status expired may be excused in the discretion of the Service and without separate application, with any extension granted from the date the previously authorized stay expired, where it is demonstrated at the time of filing that:
(i) The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances;
(ii) The alien has not otherwise violated his or her nonimmigrant status;
(iii) The alien remains a bona fide nonimmigrant;
(iv) The alien is not the subject of deportation proceedings under section 242 of the Act (prior to April 1, 1997) or removal proceedings under section 240 of the Act.
(v) As a condition for approval, an alien seeking to change nonimmigrant classification must demonstrate that he or she has not received, since obtaining the nonimmigrant status from which he or she seeks to change, one or more public benefits, as defined in 8 CFR 212.21(b), for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months). For purposes of this determination, DHS will only consider public benefits received on or after October 15, 2019, for petitions or applications postmarked (or, if applicable, submitted electronically) on or after that date.

The regulation for a change of status is similar, but the language includes a provision for the application of the new public charge regulation. The relevant regulation is 8 C.F.R. 248.1(c), which provides: The key to succeeding under either is demonstrating that the delay in filing was due to extraordinary circumstances beyond the control of the applicant or petitioner and that such delay was reasonable given the circumstances:

1. Make case-specific arguments with regard to extraordinary circumstances that are beyond the control of the applicant or petitioner.

2. In H-1B and most other nonimmigrant worker petitions, the applicant or petitioner would be the employer. However, since it is the beneficiary who is granted the change or extension of status, traditionally, evidence regarding the beneficiary’s extraordinary circumstances have been considered.

The Beneficiary :
“¢ Circumstances surrounding the termination of employment: No or little notice of lay-off that was not performance-based. “¢ Health (physical, mental or emotional) issues of the beneficiary or of family members
“¢ Technical issues (e.g., delays in the ability to obtain devices to participate in virtual interviews after employer-provided devices returned to the original employer)
“¢ Slower hiring process due to mandatory office closures

The Petitioner:
“¢ Temporary financial issues
“¢ Delays in the hiring process due to having to revamp the hiring process to accommodate virtual interviews
“¢ Inability to access key documents or information due to mandatory work at home directives and/or illness of responsible employees
“¢ Delays in obtaining signatures on immigration forms due to mandatory work at home directives and/or illness of responsible employees

Hence the employer and the beneficiary have viable means to excuse the late filing, lapse, of a petition if the circumstance is beyond the control of the employer/applicant and the COVID pandemic may qualify under certain scenarios to sue the above-mentioned doctrine.

Related Blogs: https://emandilaw.com/premium-processing-uscis-resumes-premium-processing-for-certain-petitions/