US Citizenship and Immigration Services announced a policy manual update dealing with situations where a petition or application to extend stay in the US or amend or change status, and the use of discretion to accept late filings.  The new guidance gives concrete examples of where use of this discretion may be justified.

Generally, an application or petition to extend or change a nonimmigrant visa status must be received “timely” – before the existing status has expired.

If not timely received, a petition for more time in existing status or a new status may yet be approved but without continuity of time in the US.  An individual would need to depart at the end of validity of the current period of nonimmigrant stay, and upon USCIS approval obtain a new visa stamp at a consulate abroad for the status approved.  Only then could they then return to the US to be present here under the new approved status.

In rare circumstances, USCIS has the ability in their own discretion to accept a late-filed petition and extend or amend status while an individual remains present in the US.  There wasn’t a lot of clarity, however, on which kinds of situations would justify an exercise of such discretion.

The memo gives as examples situations where the delay in filing 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 (where there have been government shutdowns due to congress’ inability to pass continuing resolutions, this has been a big problem).

There may yet be other circumstances that allow USCIS’ use of this discretion, and any other argument may still be set forth – but with this memo, we have some examples of what we know USCIS would accept.