How can you obtain an Extension of Stay (e.g., for an H-1B, O, L, etc.) when your extension of stay application is filed LATE?

Under the general U.S. immigration rule, you must file an EXTENSION OF STAY application for a non-immigrant status (e.g., H-1B, O, L, etc.) BEFORE your original status expires. For example, if your H-1B status expires on November 29, 2006, then you must file your extension of stay application before November 29, 2006. What happens, however, if you fail to file your extension before your original status expires, or you otherwise fail to maintain the previously accorded status? Normally, this means that your extension of stay application will be DENIED. There is an exception however.

Under, 8 CFR 214.1(c)(4), the USCIS has the discretion to GRANT the late extension of stay. Basically, you have to show that (1) the delay was “due to extraordinary circumstances beyond the control of the applicant or petitioner”, and the USCIS must find “the delay commensurate with the circumstances”; (2) you were not otherwise violating your nonimigrant status; (3) you remain “a bona fide nonimmigrant”; and (4) you are not subject to deporation procedings or removal proceedings.

8 CFR 214.1(c)(4) and (5), state:

(c) Extension of stay --

(4) Timely filing and maintenance of status. An extension of stay may not be approved for an applicant who failed to maintain the previously accorded status or where such status expired before the application or petition was filed, except that failure to file before the period of previously authorized status expired may be excused in the discretion of the Service and without separate application, with any extension granted from the date the previously authorized stay expired, where it is demonstrated at the time of filing that:

(i) The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances;

(ii) The alien has not otherwise violated his or her nonimmigrant status;

(iii) The alien remains a bona fide nonimmigrant; and

(iv) The alien is not the subject of deportation proceedings under section 242 of the Act (prior to April 1, 1997) or removal proceedings under section 240 of the Act. (Revised effective 4/1/97; 62 FR 10312)

(5) Decision in Form I-129 or I-539 extension proceedings. Where an applicant or petitioner demonstrates eligibility for a requested extension, it may be granted at the discretion of the Service. There is no appeal from the denial of an application for extension of stay filed on Form I-129 or I-539.