The USCIS has made NO special plans or exceptions for visa holders. You do not just get to stay longer than initially permitted because of the COVID-19 crisis. You must take affirmative steps to ensure you remain in valid, nonimmigrant status, or you will lose the validity of your visa stamp. If you entered as a tourist or on business with a B1 or B2 visitor visa, you must first determine your approved length of stay given to you on your I-94 entry stamp (you can verify it on the CBP website https://i94.cbp.dhs.gov/I94/#/home. To extend your stay, for a maximum of six months you must submit an I-539 application to be received by USCIS before the stay granted on your I-94 expires. The Form I-539 can be done online or can be physically sent by mail. Attorney handled cases can ONLY be sent by mail: https://www.uscis.gov/i-539
It is important to read all the instructions. Many cases are rejected due to basic errors including incomplete or wrong filing fee checks, lack of signatures, blank lines, lack of required evidence, sending to the wrong address, and/or lack of proof of the reason to request the extension (border of your country is closed, a medical reason that does not allow travel, proof of funds to stay, etc). Sometimes, it may take more than 6 months for USCIS to respond to the extension request. It is important to leave the country or submit a second extension before another 180 days have elapsed since the extension was requested.
If you are in the USA with Visa Waiver or ESTA, you can request an extension of 30 days if you cannot return to your country. You must prove that there are no flights or that the border is closed (that includes the country of your passport) even if you live in another country. To request the 30-day extension, you must call USCIS directly. See the instructions here: https://www.uscis.gov/news/alerts/covid-19-delays-extensionchange-status-filings
It is important to document your case well because if you are denied the extension and you are in the US for even one day without a valid I-94, your Tourist visa is automatically canceled and you cannot use it again to travel to the USA.
You can request a change of status to a student visa with the Form I-539, accompanied by the Form I-20 issued by the school in which they will study. The I-20 itself does not give any status or benefits but forms the basis of the application for a student visa (F-1 visa). If you apply for a change of status to a student visa, you must also extend your current visa until the change to F status is approved. This is called “bridging” and while it appears to be not actually required by the law, the Trump administration has required it for three years. As these applications take up to eight months or more to process, people on tourist visas must do up to three extensions of stay of your B visitor visa status in addition to the change of status. The student visa will not be approved for programs that offer only online courses; this is important because if your program does not have in-person classes (especially English courses) due to COVID, you have to change programs with a new I-20 or abandon the change to a student visa. It is important to know that neither you nor your children can study before the student visa is approved.
- Working without a work permit: It is considered a violation of the conditions of your stay to work without a work permit in any way. It is not allowed to work for your own company or operate your own business with a tourist visa.
- Register children to study in school in the US without the correct visa. Children are NOT allowed to register for school if they are on a visitor visa in the United States. While virtually all schools will register them, it is a violation of their visa and can lead to visa cancellation.
- Applying for asylum to avoid going out of status. If you do not have an EXCELLENT case to request asylum based on demonstrable persecution in one of the asylum categories, or if you include false evidence, or if you request asylum having another nationality apart from the country of which you are requesting asylum, you will be considered to have filed a frivolous or fraudulent application that will bar you from all immigration benefits for the rest of your life. . You also cannot work until you receive your work permit. Getting work permit is NOT a good reason to file for asylum, and it can up to a year after filing to obtain that work permit.
- Entering the US with a tourist visa to apply for Asylum or Residence can be considered fraud. When you enter the US with a tourist visa, you are representing that you are coming for a short visit and that you are going to return to your country within the time allotted. If you enter with the intention of staying, you are considered to have committed fraud when entering and, based on that fraud, your application for residence and future visas may be denied. Although the law allows one to change one’s intentions after entering, DHS and consulates consider activities within the first 90 days to be evidence of fraudulent intent. Also, if your arrival in the US is inconsistent with the purposes of the visa (for example marriage, work without permission, registering children at school, selling property or resigning from work abroad), this creates a presumption of automatic fraud. If something changes after arriving in the United States and you decide to stay and apply for residence, it is a good idea to consult with an attorney who will represent you in the process to avoid being accused of fraud.
- Inconsistencies and errors in applications are not forgiven by the USCIS. Regardless of working with a good lawyer, errors do occur. It is your responsibility to ensure that the data and evidence in your application is correct and complete. USCIS reviews and compares the information on your application to any information on previous visa applications and public records (even to the tourist visa applications you made 20 years ago at the embassy). Even small inconsistencies between these old applications can result in denial and possible charges of fraud; fraud is a barrier to future applications if you do not qualify for a pardon. Always keep a complete copy of the applications that are submitted by you to immigration to ensure that your applications are ALWAYS consistent.
- Processing visas with “notarios,” advisers, paralegals, and “friends.” Only a licensed US attorney or accredited representative working for an organization recognized by the Department of Justice (DOJ) can give you legal advice. This is noted by USCIS on its “Common Scam” website https://www.uscis.gov/avoid-scam. USCIS warns that the wrong help can hurt you for life and that advice on immigration by notaries, paralegals, and advisers who are not licensed attorneys in the US is not legal and is considered an immigration scam. There are many people who represent themselves as “experts” in immigration procedures, but they are not licensed attorneys in the United States. These people are prohibited from giving legal advice in their process and whoever advises them assumes full responsibility for the mistakes they make in their application based on such bad advice. Always ask to see your lawyer’s license and check the validity of it with the bar association of the state in the state that the attorney is admitted to practice the profession. Also, use avvo.com, Facebook.com, Yelp.com and other sites to see what other say about the attorney BEFORE you use their services.
Very likely yes. If a green card holder applies for admission to the U.S. after being away more than 180 days, he or she will again be considered an applicant applying for admission to the U.S. under section 101(a)(13)(C)(ii) of the Immigration Act. While you may be placed on secondary inspection and subject to increased scrutiny on your return, you will likely not be denied admission if the reason you were unable to return within 180 days and was due to COVID-19. Be prepared to demonstrate that you were unable to secure a return flight from your home country with evidence of flight cancellations and border closings.
The green card (Form I-551) is not technically valid for re-entering the US if you have spent more than 1 year outside of the US since your last departure. If your reason for not returning was related to COVID-19, you must apply for a returning resident visa (SB-1) at the US Consulate as soon as it is reopened to the public and explain that your inability to return was due to COVID -19 and this was out of his control. But you will still need to prove that you never left permanent residence by showing that you are returning from a temporary visit abroad, continued to maintain ties to the US (i.e., maintained a residence in the US, employment in the US). (You filed taxes as a U.S. resident) and/or your immediate family was in the U.S. during your absence) and that you always intended to resume your permanent residence here in the U.S. U.U ..
If your green card (Form I-551) has not expired, you may want to travel directly to the US and explain at the port of entry that you never abandoned your permanent residence (but only if the CBP officers challenges you or asks you about your departure of over one year. Do NOT volunteer this information). As explained above, you must be prepared to demonstrate that your absence was due to circumstances beyond your control (border closings and flight cancellations due to COVID-19) and that you maintained ties to the US. during his absence. While this is riskier than applying for an SB-1 visa, the Customs and Border Protection official has the discretion to deny or approve entry to the U.S. even without a technically valid I-551. The CBP officer may ask you to complete Form I-193, Application for Passport and / or Visa Waiver and require you to pay the required fee. In the event that the CBP official does not approve your entry as a legal permanent resident, you have the right to have an Immigration Judge review your case for which you must hire an attorney to defend your absence if it was temporary. You should NOT sign the Form I-471 abandoning your residence. You will NOT be detained, and any threats otherwise are meaningless. Also, you CAN call your family and attorney from secondary inspection to tell them what is happening.
The answers to questions 2 and 3 are equally applicable to someone who has stayed beyond the expiration date of the re-entry permit.
No. You must be physically present in the United States when USCIS receives your application for a reentry permit.
To naturalize, you must show that you have been physically present in the U.S. for half of the relevant period: 5 years or 3 years (if married to a U.S. citizen for 3 years), prior to filing the Naturalization Application. This is 913 days and 548 days respectively. Each day you spend outside of the US you interrupt the time you have already accumulated until you are readmitted back to the US and accumulate more days. If by the time you left the U.S. you had already exceeded the number of days in the U.S. required for you to naturalize, you may still have enough days to qualify despite your prolonged absence.
If you meet the physical presence test, you must also show that you did not break the continuity of the residence. Staying outside of the US for more than six months, but less than a year, will give rise to the presumption that you do NOT have continuous residence, but you can challenge that presumption by showing that you maintained your residence and/or employment in the US, or that immediate family members remained in the United States. If you stayed abroad for a continuous period of more than 180 days, you should consult with an attorney to assess your eligibility for naturalization and guidance on how to demonstrate continued residence despite that absence.
Unfortunately, any of the consecutive time for physical presence will be erased, and you must wait 4 years and 1 day before you can file Form N-400 again, provided that you have the required physical presence as discussed above, and have also been continuously residing during the relevant period.
Yes. Spouses of US citizens working abroad for certain organizations may not have to meet the physical presence of residence requirement. Most of the people who make use of this exception are spouses of US citizens who work for a US corporation or its foreign affiliate that is engaged in the development of foreign trade or US trade. There are also several other exceptions. Make an appointment with one of our attorneys to see if you qualify for any of them.