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How would you describe ‘extraordinary circumstances?'

If you're USCIS, the answer is “a slowdown or stoppage of work involving a strike, lockout, or other labor dispute” or “a lapse in government funding.”

The U.S. Citizenship and Immigration Services agency (USCIS) realizes that some things are out of your control, and so a new policy alert from USCIS helps nonimmigrants who have been prevented from filing for an extension of stay or a change of status “if the delay was due to extraordinary circumstances beyond the control of the applicant or petitioner.”

According to the policy manual update, if a nonimmigrant petitioner meets the conditions set forth for having experienced “extraordinary circumstances”, USCIS may use its discretion to excuse the late filing and allow it to be granted. 

Do I Meet the Conditions for Establishing “Extraordinary Circumstances?”

In order to meet the standard of extraordinary circumstances, here are the conditions that must be met:

• You are a nonimmigrant worker. 

• You were working in the country on a valid status (likely on an H-2B visa).

• Due to circumstances beyond your control, such as a labor strike or labor dispute, or a lapse in government funding to provide for the ability to obtain a certified labor condition application or temporary labor certification, you were unable to get the requisite documentation to extend or change your status in time. 

• Your status did not expire prior to the workplace labor dispute or situation.

According to Action 1.1 of the H-2B Worker Protection Taskforce Report, “a worker who has remained in the United States after the expiration of the period of admission identified in their Form I-946 due to a workplace labor dispute will not be negatively impacted solely for these reasons when applying for a subsequent visa or a change of nonimmigrant status.” 

It's important to note that while the description of workplace “extraordinary circumstances” feels somewhat generalized, the conditions to meet that definition are fairly specific, and this new policy should not be relied on as a defense for overstaying a visa unless you truly have experienced the “extraordinary circumstances” USCIS defines above.

If you have questions about filing a change of status request or any other immigration filing please reach out to us at (757) 422-8472, or send us a message on our website. You can also schedule an appointment with one of our attorneys by clicking on this link.