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Latest Immigration News: Asylum Will Be Denied To Those Transited Through a Third Country

December 18, 2020

Author: NYC Immigration Lawyer Alena Shautsova

Department of Homeland Security and Department of Justice published final rules regarding barring asylum to those who on their way to the United States transited through a different country. The new rule goes into effect on January 19, 2021.

To qualify for asylum, an applicant will have to demonstrate that either he/she filed for asylum or similar protection in one of the countries she transited through on the way to the USA, and received a final judgment of denial; or that the alien is the victim of severe human trafficking; or that all the countries the person transited through are not part to the International treaties protecting refugees: 1951 United Nations Convention Relating to the Status of Refugees or the 1967 Protocol relating to the Status of Refugees.

The rule will be applied to those asylum seekers who enter or attempt to enter the United States across the southern land border. It will be applied to all asylum seekers who do not meet exceptions, including unaccompanied minors. The rule will be used in connection with credible fear screening as well, necessary limiting the number of persons who may qualify to see the judge.

A usual route for someone from Central America would include crossing Guatemala and Mexico. These countries traditionally are not considered safe for asylum seekers, and as a rule, persons who are fleeing violence would not seek protection in Guatemala, where there is a high crime rate and violence of its own.

Note that this rule will not be applied to those entering the US via airports, or by the sea, entering the United States at other borders.

This new rule adds on to the incoming restrictions and modifications for asylum eligibility that will go into effect on January 11, 2021.

If you need help with an asylum case, call us at  917 885 2261 to reserve a confidential consultation.

COVID-19 Pushes the Legal Profession into the Digital Age

November 16, 2020

COVID-19 Pushes the Legal Profession into the Digital Age

Author: NYC Immigration Lawyer Alena Shautsova

While some people have appreciated the convenience of webcam-to-webcam conversations for years, many lawyers and consultants have avoided the options completely. Some will offer phone consultations while others have a strict policy of coming into the office for any question or to drop off any document. Other lawyers, like myself, have offered both office appointments or physically dropping off the documents with an assistant as well as Skype or phone consultations and the option to email documents to the office email address. The Courts and other legal-related services have also, for the most part, favored in-person hearings over hearings held via Zoom or the phone and paper submission over internet submission of documents. The refusal to offer the choice between legal services online or in-person could be due to a lack of technical skills, resources, or simply personal preference of the attorney, Judge, or administrative clerks. One thing is for sure: the legal landscape is rapidly changing due to COVID-19.

Courts and attorneys are canceling in-person appointments and hearings and rescheduling cases on a weekly basis. With shutdowns across the country, some of which have lasted since March 2020, the legal profession is developing methods to continue moving cases forward and keep people safe at the same time. This past week, the first socially distant criminal trial in New York took place since the shutdown. In terms of Immigration cases, this would be the equivalent of an individual hearing in removal proceedings. The way Courts conduct Zoom hearings, for now; I will agree that face to face observations between a defendant and a judge or a jury member may be better. These fraction of a second facial expressions and gestures are essential aspects of a trial that can make the difference between winning your case and losing. However, at the rate Courts are evolving in light of COVID-19, I am not sure my answer will be the same if they can rollout 4k webcams and TVs with highspeed internet. COVID-19 is pushing the legal profession to make much-needed service changes two decades overdue. Hopefully, when COVID-19 disappears, and the world recovers from the global pandemic, the choice to appear in-person or online will not disappear as well.

So, what are the benefits of online consultations?

  1. Convenience – Whether it is regular work hours getting in the way or travel time: Skype or phone consultations save time and money.
    1. No more need to take off from work to make an appointment with an attorney.
    1. No need to plan an hour-long consultation during a lunch break that lasts an hour.
      1. When people do this, they cut their appointment short because of travel time and end up going back to work “hangry” and feeling like they didn’t get their full consultation or all of their questions answered.
    1. Save time on travel.
  2. Comfort – Have the consultation in a comfortable place: your home.
    1. When a person is comfortable, they answer questions more clearly and accurately, which is a crucial step to analyze a legal case.
    1. Moreover, people feel less pressured to hire an attorney if they are not ready to do so when they are at home instead of the attorney’s office.
    1. Sometimes it is best to wait a few weeks to hire rather than start stressed about an immigration issue and finish the consultation stressed about finances. Take your time and review your budget.
    1. If you are hiring my firm, aside from removal proceeding cases, for most cases, you can call to set up a payment plan that fits your budget.
  3. Results – With less time spent traveling, attorneys and Court personnel have more time to do what you want them to do: work on your case (or consult you). The average travel time for people who work in NYC is 45 minutes.
    1. Eliminating this travel time has allowed my practice to handle extra work
    1. Courts are seeing results from the lack of travel time and an exciting increase in productivity, particularly USCIS and the Immigration Courts.
    1. Reports of people receiving receipts and fingerprint notices sooner than the expected month-long wait are coming in.
    1. Furthermore, I expect that once USCIS handles the backlog of cases from the full shutdown, they will process US Immigration cases faster; Judges will rule on pending motions faster; immigrants with pending cases will have their cases decided faster.

What are the cons of an online legal system?

  1. The biggest con to an online legal system is the idea that third actors will violate a person’s privacy.
  2. When it comes to trials, no one will observe and analyze the trial better than an in-person participant. No one is arguing that Immigration Courts should allow master hearings to be held over the phone or video conference software. However, In-person trials vs. Online or Phone trials are still frowned upon.
    1. It is possible to quantify the experience mentioned above into the comparison of a person attending a Broadway show in-person vs. watching the performance live and deciding to stand and clap to show appreciation.
    1. Not many people will stand up from their living rooms to clap, but then again, watching the performance live does not allow the actors to see whether you stand and clap or stay seated.
    1. The real question is whether the performance from your living room was good enough to get you to stand up and clap or not if the actors could see you.
    1. It may be easier to make a biased or unbiased choice when the person is not in front of you. The decision to rule on a case based on bias is up to the individual jury members or Judges. In terms of Immigration, juries do not decide cases, and luckily, Judges and prosecutors have training in making decisions based on fact and law rather than a subjective bias.

All in all, the landscape is undoubtedly changing, and it is important to keep up with the sometimes-overwhelming digital revolution if you want the best results. Judges are becoming more tech-savvy and preferring e-submissions to paper-submissions (save the trees!). If you are looking for a firm that is keeping up with the trends and changes in US Immigration law, and as a result, exceeding expectations:

  1.  Call us today @ 917-885-2261
  2. Message us on Facebook @immigrationlawyerny

Documentary Evidence in Asylum Cases

November 11, 2020

Author: US Asylum attorney Alena Shautsova

Alena Shautsova, NYC based, US Asylum attorney helps clients to identify potential evidence in support of their asylum claims and helps to argue that the evidence shall be admissible in cases where the evidence is challenged on the grounds of relevancy, authenticity, or weight.

What evidence can be used in support of one’s asylum claim in the US? This is one of the most popular questions I receive every day from US asylum seekers. The evidence may range from the types: letters, photos, copies of forms, applications, medical records, but also may range in the likelihood of acceptance and weight.

First, one should know that in the US Federal court system there are rules of evidence: that is written rules which all participants of the court process (people, judges, and the prosecutors) should follow. In the “regular” , non-Immigration court, such rules have strict guidelines, for example, hearsay would not be allowed to be used by any of the parties (hearsay is a statement made out of court offered for the truth of the matter asserted. ) But in Immigration court, the same rules are more relaxed, and hearsay are often used by both the respondents (person who is placed in removal proceedings), and prosecutors.

One of the types of evidence we use in asylum cases is documents or documentary evidence. When we work with documents, we need to follow the rules of evidence and be mindful that any documents that can be produced in support of one’s asylum case can be questioned by the prosecutor or the judge on the grounds of authenticity (if it is a real, unaltered document), relevancy (if it relates to the claim), weight (if it contributes to the person’s burden of proof or shall be disregarded as biased),

In support of one’s asylum claim, a person may present a variety of documents: police and medical records, declarations and affidavits by witnesses, family, and friends, country conditions reports, etc. Often, an asylum applicant is afraid that the documents will be leaked to his/her government. But how then the US government can verify the documents without showing them to the authorities of one’s country?

The US government has established criteria for determining when its own investigative documents and reports are reliable, and they have to identify: 1). the investigator and his/her qualifications; 2). the objective and extent of investigation; 3). the methods used to verify the information discovered. Memo. Cooper, G.C. “Confidentiality of Asylum Applications and Overseas Verification of Documents and Application Information.” As such, the U.S. government can and often will investigate the documentary evidence presented by the asylum applicants to verify their authenticity. Often it is done via consular reports.

The standard for documents’ credibility is the same as for the testimony: and any adverse decision must be based on specific, cogent reasons that bear a legitimate nexus to the finding.” Zahedi v. INS, 222 F3d 1157, 1165 (9th Cir. 2000). However, if an applicant present forged documents, that affects his/her credibility in the absence of explanation or rebuttal. The use of fraudulent documents to escape the country of persecution has been recognized as not fatal to one’s asylum claim. Matter of Pula, 19 I&N Dec. 467, 474 (BIA 1987).

Moreover, hearsay documents cannot be the basis for adverse credibility findings. (Consular report that the Russian’s birth certificate did not conform to the Russian records failed DOS’ own standards and lacked the name and title of the investigator, Balachova v. Mukasey, 547 F3d 374, 382-383 (2d Cir. 2008).

Now, the judge may not exclude the documents and then rule that the lack of the documents is a basis for adverse credibility findings. Notably, in the US, a document may be authenticated via various means:

Certification procedure stated in 8 CFR 287.6;

Fed R. Evid. 902(3)

Fed R. Civ. P. 44

An expert may authenticate a document; and

The inherent reliability of the document (business record exception to the hearsay rule, for example).

A common question herein would be: must affidavits be notarized? Notably, no. Affidavits may not be notarized. First, a person may use an exception to the notarization requirements: under the US Federal law, a sworn declaration may have the same weight as a sworn affidavit. But Immigration courts also may accept unsworn letters as authentic statements: an author may be in grave danger and would not risk his/her life going to the notary public to authenticate his/her signature. Note, however, that the judge would be the ultimate ruler regarding the admissibility of the evidence: at least one judge refused to accept letters by friends and family members stating that such letters were not objective. Djadjou v. Holder, 662 F3rd 265, 276 (4th Cir. 2011).

Finally, statements and reports, by both the applicant and the government, may be challenged for factual inaccuracies or because they represent highly unreliable hearsay. Grigoryan v. Barr, 959 F 3d 1233, 1240-43 (9th Cir. 2020).

That is where the skill and knowledge of your attorney may be particularly helpful and may bring that victory which every applicant for asylum is hopeful for.

If you need help with an asylum claim, please call our New York office to reserve a confidential consultation at 917-885-2261.

Aging-Out Children and Cancellation of Removal

September 17, 2020

Author: USA Immigration lawyer Alena Shautsova

At the law office of Alena Shautsova, we help our clients to use complicated US Immigration laws to achieve their Immigration goals: the US immigration law governing one’s case and affecting one’s life in the US, can be extremely complicated and not obvious. A times, an “obvious” assumption may  actually be disputed by various Immigration bodies controlling one’s case: Immigration Judge, Board of Immigration Appeals, or a prosecutor. Consider this example that deals with aging out children and cancellation of removal.

Cancellation of removal for non-permanent resident is a relief available to some persons who have accumulated 10 years of continuous presence in the US, possess good moral character, and can demonstrate that their removal would result in extreme hardship to their qualifying relatives. A qualifying relative for the purposes of cancellation of removal can be a USC or LPR, spouse, parent or a child (under 21 years old).  To learn more about qualifications for cancellation of removal, please visit our blog: Cancellation of Removal:

Imagine that a person, who is not married and who does not have parents in the USA,  has a US citizen child. That child, is the person’s only qualifying relative for the purposes of cancellation of removal. Further, by now, almost everyone knows that cases take a very long time to process in US Immigration courts. It takes even longer to get a final result in an Immigration case for a  relief in the form of cancellation of removal. Will a person who filed for cancellation of removal while the child was under 21, but whose child turned 21 while the case was pending, be still eligible for cancellation or removal? This is an important question one Federal Court gave an answer to in Martinez-Perez v. Barr, No. 18-9573, (Ca. 10th Cir, Jan. 17, 2020).

In Martinez-Perez, respondent-father submitted his application for cancellation of removal well before his daughter’s 21st birthday. In fact his daughter was only 16years old. But, as the fate and the court had it, Mr. Martinez’ final hearing was scheduled about six years later, when his daughter turned 21 years old. Mr. Martinez’ as such, seemed to have lost his eligibility for cancellation of removal. So ruled the Immigration Judge, and the Board of Immigration Appeals. The issue here was, of course, that the statute or the law regarding qualifications for cancellation of removal, is written so that it is not clear, what it actually means: shall the hardship be established at the time of the final decision, or at the time of the application? Imagine that there are two identical cases A and B. Both A and B’s children are under 21 at the time they file for the cancellation of removal. But A’s case is decided within 1 year, and B’s case is postponed for 8 years, without his request, and his child turns 21 before the decision is made…

After careful analysis, the Court came to a conclusion that if an immigrant suffered an unfair delay that resulted in violation of his/her due process rights, he, may qualify for the relief nevertheless. It does not mean, that in every case of aging out child, an immigrant may win the argument that his/her application should nevertheless be granted. But it does give hope for the cases stuck in the processing backlog.

As you can see, you never “know” how a case may turn out… If you need help with your Immigration case, please call to schedule a consultation at  917-885-2261.

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New York Immigration Statistics

July 16, 2020

I would like to share excellent research by the Immigration Council related to immigration in New York: the number of immigrants, their origins, their contributions to society! Below are the quotes from their report:

“New York is often considered one of the greatest cultural hubs in the country, having welcomed immigrants long before the days of Ellis Island. Immigrants now account for nearly one-quarter of the state’s total population and make up more than one-fourth of its labor force. As neighbors, business owners, taxpayers, and workers, immigrants are an integral part of New York’s diverse and thriving communities and make extensive contributions that benefit all.

Nearly a quarter of New York residents are immigrants, while almost one-fifth of residents are native-born U.S. citizens with at least one immigrant parent.

  • In 2018, 4.4 million immigrants (foreign-born individuals) comprised 23 percent of the population.
  • New York was home to 2.3 million women, 2 million men, and 206,980 children who were immigrants.
  • The top countries of origin for immigrants were the Dominican Republic (11 percent of immigrants), China (9 percent), Mexico (5 percent), Jamaica (5 percent), and India (4 percent).
  • In 2018, 3.6 million people in New York (18 percent of the state’s population) were native-born Americans who had at least one immigrant parent.

Nearly three in five immigrants in New York are naturalized U.S. citizens.

  • 2.6 million immigrants (58 percent)had naturalized as of 2018, and 890,099 immigrants were eligible to become naturalized U.S. citizens in 2017.
  • Three-fourths (75 percent) of immigrants reported speaking English “well” or “very well.”

Immigrants in New York are distributed across the educational spectrum.

  • One-third (33 percent) of adult immigrants had a college degree or more education in 2018, while nearly a quarter (24 percent) had less than a high school diploma.  
Education LevelShare (%) of All ImmigrantsShare (%) of All Natives
College degree or more3339
Some college1826
High school diploma only2526
Less than a high school diploma248
Source: U.S. Census Bureau, 2018 American Community Survey 1-Year Estimates.

Over half a million U.S. citizens in New York live with at least one family member who is undocumented.

  • 725,000 undocumented immigrants comprised 15 percent of the immigrant population and 4 percent of the total state population in 2016.
  • 1.2 million people in New York, including 547,802 U.S. citizens, lived with at least one undocumented family member between 2010 and 2014.
  • During the same period, about one in 12 of children in the state was a U.S. citizen living with at least one undocumented family member (351,146 children in total).

New York is home to over 28,000 Deferred Action for Childhood Arrivals (DACA) recipients.

  • 28,910 active DACA recipients lived in New York as of 2019, while DACA has been granted to 118,860 people in total since 2012.
  • As of 2019, 36percentof DACA-eligible immigrants in New York had applied for DACA.
  • An additional 20,000 residents of the state would satisfy all but the educational requirements for DACA, and fewer than 2,000 would become eligible as they grew older.

About one in four workers in New York is an immigrant, together making up a vital part of the state’s labor force in a range of industries.

  • 2.8 million immigrant workers comprised 28 percent of the labor force in 2018. 
  • Immigrant workers were most numerous in the following industries:
IndustryNumber of Immigrant Workers
Health Care and Social Assistance604,741
Accommodation and Food Services301,593
Retail Trade284,432
Educational Services232,726
Transportation and Warehousing224,796
Source: Analysis of the U.S. Census Bureau’s 2018 American Community Survey 1-year PUMS data by the American Immigration Council.
  • The largest shares of immigrant workers were in the following industries:
IndustryImmigrant Share (%)
(of all industry workers)
Transportation and Warehousing39
Other Services (except Public Administration)36
Accommodation and Food Services35
Health Care and Social Assistance33
Source: Analysis of the U.S. Census Bureau’s 2018 American Community Survey 1-year PUMS data by the American Immigration Council.

Immigrants are an integral part of the New York workforce in a range of occupations.

  • In 2018, immigrant workers were most numerous in the following occupation groups:
Occupation CategoryNumber of Immigrant Workers
Transportation and Material Moving280,354
Sales and Related266,206
Office and Administrative Support262,142
Healthcare Support250,294
Source: Analysis of the U.S. Census Bureau’s 2018 American Community Survey 1-year PUMS data by the American Immigration Council.
  • The largest shares of immigrant workers were in the following occupation groups:
Occupation CategoryImmigrant Share (%)
(of all workers in occupation)
Healthcare Support49
Building and Grounds Cleaning & Maintenance43
Construction and Extraction37
Transportation and Material Moving35
Personal Care and Service33
Source: Analysis of the U.S. Census Bureau’s 2018 American Community Survey 1-year PUMS data by the American Immigration Council.
  • Undocumented immigrants comprised 5 percent of New York’s workforce in 2016.

Immigrants in New York have contributed tens of billions of dollars in taxes.

As consumers, immigrants add well over a hundred billion dollars to New York’s economy.

  • New York residents in immigrant-led households had $120.5 billion in spending power (after-tax income) in 2018.

Immigrant entrepreneurs in New York generate billions of dollars in business revenue.

  • 348,547 immigrant business owners accounted for 34 percent of all self-employed New York residents in 2018 and generated $7.8 billionin business income.
  • In the New York-Northern New Jersey-Long Island metropolitan area in 2018, nearly one-third (31 percent) of business owners were immigrants.”

Trump Signs Proclamation To Revoke Visas of Certain Chinse National and Prevent Their Entry Into The US

May 31, 2020
New Immigration Restrictions For Chinese Students and Researchers

Author: NYC Immigration lawyer Alena Shautsova

On May 29, 2020, President Trump issued another proclamation related to the travel restrictions by citizens of China. Trump used its authority under the Immigration and Nationality Act Section 212(f) to limit the entry of non-citizens into the US. In addition, the Proclamation also calls for revocation of visas of those persons who are currently in the United States and who fall under the Proclamation’s frames. However, unlike previous proclamations, this one does not have a time limit and will remain in effect until revoked by the President.

According to the new proclamation, citizens of China seeking to enter the United States for graduate studies and higher, students and researchers will be prohibited to come to the US if they:

— receive funding from or who are currently employed by, study at, or conduct research at or on behalf of; or

— have been employed by, studied at, or conducted research at or on behalf of, an entity in China that implements or supports the PRC’s military-civil fusion strategy (MCF).

For an explanation of the MCF please see the Department of State’s website: . According to DOS: “Key technologies being targeted under MCF include quantum computing, big data, semiconductors, 5G, advanced nuclear technology, aerospace technology, and AI. The PRC specifically seeks to exploit the inherent ‘dual-use’ nature of many of these technologies, which have both military and civilian applications.”

The Proclamation provides for generous exeptions, it does not apply to:

–Undergraduate students;

— Lawful permanent residents of the United States;

–The spouse of a United States citizen or lawful permanent resident;

— A foreign national who is a member of the United States Armed Forces and any foreign national who is a spouse or child of a member of the United States Armed Forces;

— A foreign national whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement (such as a PRC U.N. representative or expert performing a U.N. mission) or who would otherwise be allowed entry into the United States pursuant to United States obligations under applicable international agreements;

–A foreign national who is studying or conducting research in a field involving information that would not contribute to the PRC’s military-civil fusion strategy, as determined by the Secretary of State and the Secretary of Homeland Security, in consultation with the appropriate executive departments and agencies;

— A foreign national whose entry would further United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee; or

— A foreign national whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

The Proclamation also does not apply to asylum seekers.

The Proclamation also states that within the next 60 days, more restrictions may follow that are designed to prevent Chinese nationals from acquiring certain sensitive technology.

The Proclamation does not address the EB5 investor’s program or EB1 self-petition program that allow citizens of China to immigrate to the United States. Nor does it address any work-related or family-related immigrant visas.

It is unclear how the candidates for visa revocation will be determined and if there will be any appeal process in case of erroneous determination.

US Immigration Public Charge Chart Explaining Status and Benefits

May 6, 2020

Author: NYC Immigration Lawyer Alena Shautsova

US Public Charge Rule is confusing and complex enough even for a seasoned Immigration practitioner. Public Charge test applies for certain but not all immigration filings/ benefits. For example, VAWA, asylum and refuge seekers are exempt from the public charge test, but most employment and family-based applicants are not. Also not all public benefits would count for the public charge purposes test.

Currently, the test is being used in connection with the adjustment of status filings, filings for extension and change of status and for Immigrant visa filings. Depending on the location of the applicant, the person may have to submit form I 944 (in the US) or form DS5540 (outside the US). Please note that not all the consulates are collecting DS 5540 at this time. Consulates may not even require the form to be submitted as they can ask the applicant at the interview all relevant questions. Dorm DS 5540 cannot be submitted online at this time.

Below you will find an invaluable table composed by the Empire Justice Center that explains in detail which benefits count towards public charge for which immigration filings.

Medical Hardship for Cancellation of Removal

March 31, 2020

Author: NYC Immigration lawyer Alena Shautsova

View our video on the issue:

Best New York Immigration Lawyer
NYC Immigration lawyer

Establishing medical hardship for the cancellation of removal cases is one of the most important burdens of the person in removal proceedings.

Recently, the Board of Immigration Appeals issued a decision in the Matter of J-J-G, specifying a standard an applicant for cancellation of removal must meet in connection when trying to establish medical hardship to a qualifying relative. The decision specifically addresses a situation where the qualifying relative is argued to have to accompany the applicant in case of his/her removal.

Specifically, the BIA stated that the person who is trying to show that the relative will suffer exceptional and extremely unusual hardship in case of his/her removal must present evidence that the adequate medical help for the serious medical condition is not reasonably available in the country at issue.

The BIA emphasized that general evidence regarding the lesser qualify of medical care and lesser opportunities in the country at issue is insufficient to meet the requireed standard.

As such, the BIA ordered the respondent, a native of Guatemala, with five US citizen children to be removed to Guatemala! From reading the decision, it is apparent that the result was due to lack of preparation and absence of specific evidence addressing the issue of the cost and availability of the treatment for the medical condition for the qualified relative. Nevertheless, the decision will have a grave impact on thousands of the cancellation of removal applications. The text of the decision can be found here.

Coronavirus Update on US Visa Processing and International Travel

March 19, 2020

Author: New York Immigration Lawyer Alena Shautsova

If you feel that the news gets old the minute it is published, you are right! The US government just announced that it suspends US visa processing, and the US Government issued a warning against all international travel. Do not get stuck overseas!


In response to worldwide challenges related to the outbreak of COVID-19, the Department of State is suspending routine visa services in most countries worldwide.  Embassies and consulates in these countries will cancel all routine immigrant and nonimmigrant visa appointments as of March 18, 2020.  Check the website of the embassy or consulate for its current operating status.  As resources allow, embassies and consulates will continue to provide urgent and emergency visa services.

Please see:


The Department of State advises U.S. citizens to avoid all international travel due to the global impact of COVID-19.  In countries where commercial departure options remain available, U.S. citizens who live in the United States should arrange for immediate return to the United States, unless they are prepared to remain abroad for an indefinite period.  U.S. citizens who live abroad should avoid all international travel.  Many countries are experiencing COVID-19 outbreaks and implementing travel restrictions and mandatory quarantines, closing borders, and prohibiting non-citizens from entry with little advance notice.  Airlines have cancelled many international flights and several cruise operators have suspended operations or cancelled trips.  If you choose to travel internationally, your travel plans may be severely disrupted, and you may be forced to remain outside of the United States for an indefinite timeframe.

Please see:

What To Do It Your Visa Expires Now and You Cannot Leave the US

March 16, 2020

Author: New York Immigration Lawyer Alena Shautsova

On April 13, 2020 USCIS published guidelines on status extensions and confirmation that it may pardon extension requests filed after the expiration of the initial authorization period:

“Generally, nonimmigrants must depart the United States before their authorized period of admission expires. However, we recognize that nonimmigrants may unexpectedly remain in the United States beyond their authorized period of stay due to COVID-19. Should this occur, the following options are available for nonimmigrants: 

Apply for an Extension. Most nonimmigrants can mitigate the immigration consequences of COVID-19 by timely filing an application for extension of stay (EOS) or change in status (COS). U.S. Citizenship and Immigration Services continues to accept and process applications and petitions, and many of our forms are available for online filing. 

If You File in a Timely Manner. Nonimmigrants generally do not accrue unlawful presence while the timely-filed, non-frivolous EOS/COS application is pending.  Where applicable, employment authorization with the same employer, subject to the same terms and conditions of the prior approval, is automatically extended for up to 240 days after I-94 expiration when an extension of stay request is filed on time.

Flexibility for Late Applications. USCIS reminds petitioners and applicants that it can consider delays caused by the COVID-19 pandemic when deciding whether to excuse delays in filing documents based on extraordinary circumstances.  

Under current regulations and as noted on our Special Situations page, if a petitioner or applicant files an extension of stay or change of status request (on Forms I-129 or I-539) after the authorized period of admission expires, USCIS, in its discretion, may excuse the failure to file on time if it was due to extraordinary circumstances beyond their 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 USCIS will evaluate on a case-by-case basis. These special situations have been used at various times in the past, including for natural disasters and similar crises.

Please see 8 CFR 214.1(c)(4) and 8 CFR 248.1(c) for additional information on late requests to extend or change status. In addition, please see our Form I-129 and Form I-539 pages for specific filing and eligibility requirements for extensions of stay and changes of status.”

USCIS also stated it will exercise its authority for Satisfactory departure:

Flexibility for Visa Waiver Entrants. Visa Waiver Program (VWP) entrants are not eligible to extend their stay or change status. However, under current regulations, if an emergency (such as COVID-19) prevents the departure of a VWP entrant, USCIS in its discretion may grant a period of satisfactory departure for up to 30 days. Please see 8 CFR 217.3(a). For those VWP entrants already granted satisfactory departure and unable to depart within this 30-day period because of COVID-19 related issues, USCIS has the authority to temporarily provide an additional 30-day period of satisfactory departure. To request satisfactory departure from USCIS, a VWP entrant should call the USCIS Contact Center.”   

Friends, family and clients are reaching out to see what they can do now when the US and other countries is canceling most of their flights outside the US and it is not recommended to fly at this time of coronavirus outbreak. The answer will depend on how a person entered the United States: on a visa (sticker in their passport) or he/she entered using Visa Waiver (no sticker in their passport). For those who entered on a visa, it is possible, before the expiration of their authorized stay to file form I-539, application to extend non-immigrant status. A person will be authorized to stay in the United States while their application is pending. Note, that for those who entered on a B1/2 visa/status, the maximum possible time limit for an extension would be six months.

The situation is different for those who entered on the Visa Waiver, as the law does not provide for a possibility to request an extension of stay using form I 539. Below, I quote just received note from the New York Chapter of the American Immigration Lawyers Association:

“Extending ESTA/Visa Waiver Participants (VWP) Periods of Admission due to inability to depart the US related to COVID-19.


Individuals admitted under the VWP/ESTA program who find themselves unable to depart the U.S, before their current period of admission will end because of COVID-19 related issues who were admitted to the U.S. through John F. Kennedy International Airport, NY (JFK) and Newark Liberty International Airport, NJ (only) can contact the Deferred Inspections office at JFK, starting Monday, March 16, 2020, Monday – Friday, 9am to 4pm ET and request Satisfactory Departure for up to 30 days.   Individuals or their attorneys will need to provide the affected individual’s name, Date of Birth (DOB) and passport information at the time of the request.  Individuals and their attorneys may be asked to provide the original departure flight itinerary along with the new flight itinerary.  

Individuals and their attorneys are permitted to request Satisfactory Departure if the individual’s period of stay will expire in 14 days or less from the day he or she contacts JFK Deferred Inspections. If their period of VWP/ESTA admission has expired, the decision to grant satisfactory will be considered on a case by case basis.

To contact JFK Deferred Inspection to make the Satisfactory Departure Request use the numbers below:

(718) 553-3683 or (718) 553-3684  Monday – Friday, 9am to 4pm ET

Please see additional regulatory information about Satisfactory Departure below.  The CBP Liaison Committee is reaching out to CBP HQ to request all ports of entry implement a similar process to JFK and we will provide updated information about additional ports as soon it is available.

You can also let your contacts at other Ports of Entry know that JFK has implemented this mechanism and ask about what can be done for admissions under their jurisdiction. 

 Satisfactory Departure

Ports of entry (including deferred inspection locations) may be contacted by VWP travelers already in the United States who are unable to depart the United States before their authorized period of admission ends.

There is no provision under U.S. law to extend the stay of an alien admitted under the VWP.  The only form of relief for an alien admitted under the VWP who is unable to depart timely due to emergent circumstances is the exercise of Satisfactory Departure. 

Pursuant to Title 8 Code of Federal Regulations (CFR) Section 217.3(a), if an emergency prevents an alien admitted under the VWP from departing the United States within the period of authorized stay, a period of Satisfactory Departure may be granted not to exceed 30 days – provided that the request is made during the period of admission and the alien is still in status at the time of the request.  If departure is made within the period of approved Satisfactory Departure, the alien is regarded as having made a timely departure without overstaying the allowed time.  In emergent circumstances, requests for Satisfactory Departure may be granted if the alien is out of status but can prove the intent was to depart timely – authority to approve these cases is reserved for the Director, Field Operations, unless re-delegated locally.

Requests for Satisfactory Departure are generally adjudicated by U.S. Citizenship and Immigration Services (USCIS).  However, in extraordinary circumstances, CBP may adjudicate requests for Satisfactory Departure.  Many aliens admitted under the VWP may be stranded at U.S airports due to canceled flights.  Where appropriate, CBP should grant Satisfactory Departure if the alien is awaiting a canceled flight and the period of VWP admission is expiring prior to the traveler’s ability to depart. “