USCIS Updates Guidance on Untimely Filed Extension of Stay and Change of Status Requests

USCIS, on January 24, announced an update to its Policy Manual providing that USCIS may excuse a nonimmigrant’s failure to timely file an extension of stay or change of status request if the delay was due to extraordinary circumstances beyond the control of the applicant or petitioner.

USCIS Extraordinary Circumstances

The update clarifies that extraordinary circumstances may include where the delay was due to a slowdown or stoppage of work involving a strike, lockout, or other labor dispute, or where the primary reason for the late filing is the inability to obtain a certified labor condition application or temporary labor certification due to a lapse in government funding supporting those certifications.


This Policy Manual update addresses a commitment made in the report by the H-2B Worker Protection Task Force (see p. 6-7 of the report – Action 1.1.). The report requires that DHS clarify that a worker who has remained in the United States after the expiration of their period of admission identified in their Form I-94 due to a workplace labor dispute will not be negatively affected solely for these reasons when applying for “a subsequent visa” or a change of immigration status.

Erickson Insights & Analysis

In general, USCIS does not approve an extension of stay or change of status for a person who failed to maintain the previously accorded status or where such status expired before the filing date of the application or petition. If certain conditions are met, however, USCIS, in its discretion, may excuse the failure to file before the period of authorized stay expired.

Erickson Immigration Group will continue to monitor developments and share updates as more news is available. Please contact your employer or EIG attorney if you have questions about anything we’re reporting above or case-specific questions.