The novel coronavirus pandemic has changed how we travel between countries. The United States (US), in particular, has implemented several restrictions by legislation, executive order or other forms of directive.

When you are admitted to the US on a B1/B2 visitor’s visa, you are granted a temporary stay. For a B1/B2 visitor, usually these stays range from 14 days to a maximum of six months. To determine when your period of authorised stay expires, you should refer to the admission stamp in your passport.

If you are a visitor with this category visa and you cannot return to your home country for the following reasons:

1. You contract COVID-19 days before your authorised stay expires; or

2. You are mandated to remain in the country due to quarantine orders (ie, you come in contact with someone who has COVID-19),

and you remain in the US past the expiry date of your temporary stay, you will begin to accrue ‘unlawful presence’, which can have immigration consequences in the future. If you believe that COVID-19-related travel restrictions will cause you to remain in the US past this expiry date, you should file to extend your stay.

Generally, non-immigrants must depart the US before their authorised period of admission expires. However, the Department of Homeland Security recognises that non-immigrants may unexpectedly remain in the US beyond their authorised period of stay due to COVID-19. Should this occur, the following options are available:

1. Apply for an extension. The timely filing of an application for extension of stay (EOS) or change in status (COS) will help to mitigate the immigration consequences of overstaying due to COVID-19. The US Citizenship and Immigration Service (USCIS) continues to accept and process these applications and petitions.

2. File in a timely manner. Visa holders generally do not accrue unlawful presence while a timely, non-frivolous EOS/COS application is pending.

3. Flexibility for late applications. The USCIS reminds petitioners and applicants that it can consider delays caused by the novel coronavirus pandemic when deciding whether to excuse delays in filing documents based on extraordinary circumstances. Where a petitioner or applicant files an EOS or COS request after the authorised period of admission expires, the USCIS, in its discretion, may excuse the failure to file on time if this was due to extraordinary circumstances beyond the applicant’s control, such as those that may be caused by COVID-19. The length of delay must be commensurate with the circumstances. The petitioner or applicant must submit credible evidence to support their request, which the USCIS will evaluate on a case-by-case basis. These special situations have been used at various times in the past, including in natural disasters and similar crises. 

What must I do to extend my B1/B2 visitor status?

Any individual interested in extending their B1/B2 visitor status must:

a. Submit Form I-539 to the USCIS and pay the associated fee of $370 plus an $85 biometric services fee.

b. The USCIS must receive your I-539 form and payment prior to the expiration of your authorised period of stay. The form can be submitted either by mail or electronically, and must be accompanied by:

-A copy of Form I-94 for each person included in your application.

-A written statement that explains in detail the reasons you need an extension of your B1/B2 visitor status, such as the inability to leave due to airport closures or travel restrictions imposed due to COVID-19.

c. Show financial independence and proof that you will not become a public charge in the US.

d. Provide supporting documents to prove that your extended stay is temporary, which includes return airline tickets.

Optional: Other documents showing why you need to remain in the US (proof of health conditions, proof that you have accommodation arranged for an extended stay).

It is recommended that you have a suitable travel medical insurance policy while you are in the US to cover you financially in case you have a medical emergency or need to be hospitalised due to COVID-19.

Penalty for overstaying

Visa holders who overstay on a B1/B2 visa may be prevented from entering the US again, or forbidden from applying for another kind of visa in the future. In general, if you have overstayed for between 180 and 365 days, then you may find yourself barred from the country for three years if you attempt to return. If your unlawful presence exceeds a year, you may be barred for a decade.

Venice Williams-Gordon

attorney-at-law and partner

Lewis, Smith, Williams & Company.

Contact her at vwilliams@lswlegal.com.