May 22, 2020

If you are afraid that you may be late in filing for an H-1B or other nonimmigrant worker petition, you have the chance to claim extraordinary circumstances and still succeed.

Jing Feng Law Group found that USCIS has the discretion to excuse certain late filed applications, or petitions to change or extend status—even beyond any regulatory “grace periods.” The key to succeeding under either is showing 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. There are no set rules as to what facts might demonstrate “extraordinary circumstances.”

This practice pointer provides some 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 expired.

One would think the mass lay-offs, furloughs and economic havoc caused by the pandemic 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. Accordingly, Jing Feng Law Group advises practitioners to make case-specific arguments that reference extraordinary circumstances.

The regulations refer to extraordinary circumstances beyond the control of the applicant or petitioner. 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. Jing Feng Law Group believes it is prudent to include evidence of the extraordinary circumstances impacting both the beneficiary and the petitioner.

Practical Tips to Claim Extraordinary Circumstances:

We offer the follow suggestions according to your role:

1. The Beneficiary

• Circumstances surrounding the termination of employment:

o No or little notice

o Lay-off was not performance based

o Expectation of re-hire

o Misinformation provided by well meaning, but nonetheless misinformed, employer

o Misinformation by the employer’s immigration counsel (if applicable)

• 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

2. The Petitioner

• Temporary financial issues

• Delays in the hiring process due to having to revamp 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

The petition must also demonstrate that the delay was commensurate with the circumstances and that the circumstances warrant USCIS discretion. In making this argument, practitioners should describe why the length of the delay caused by the hardships was reasonable. Practitioners also have an opportunity to describe the hardships to both the petitioner and the beneficiary, should the extension or change of status not be granted, as well as any collateral damage that might occur.

Some factors to consider:

• Is the beneficiary’s work critical to the petitioner’s financial health?
  • Is the beneficiary’s work critical to the U.S. in some way (e.g., if the beneficiary will be engaged in support medical research or data analysis that might aid in the fight against the pandemic)
  • Would obtaining a visa abroad even be possible within a reasonable time?
  • Does the beneficiary have family members who would be impacted?
  • If the beneficiary would not be able to return to the U.S. after obtaining a visa either due to consulate closures or three or 10-year bars: o Are any family members receiving medical care (paid by insurance of course) that would not be available elsewhere?
    • Does the beneficiary have major financial obligations, such as a mortgage or car payments, that would be unpaid?
    • Are there pets who would have to be abandoned to shelters?
    • Is the beneficiary or any family member late in pregnancy or have any medical issue that would prevent travel?
    • Any other sympathetic factors related to the beneficiary and/or their family members that would strengthen the hardship argument if the beneficiary must leave the U.S.(including country conditions reports)

There are no set rules as to what facts might demonstrate “extraordinary circumstances.” Take the time to speak with our experienced attorneys to best explain what specific factors led to the lapse in status and what negative results could follow if the change or extension is not granted. More often than not, there are more “extraordinary circumstances” than one would expect.

Our attorneys have years of experience working in immigration law so know that you are in good hands. You may contact Attorney Jing Amy Feng jfeng@fengvisa.com if you have any questions.