Due to the coronavirus and the resulting travel restrictions, many foreign nationals may be unwilling or unable to return to their home country. This unfortunate reality is particularly problematic for foreign nationals whose immigration status may be expiring in the near future and are unable to extend their status. Thus far, the U.S. Department of Homeland Security has issued no policies or other guidance granting widespread relief for foreign nationals with upcoming immigration status expirations. Nevertheless, if a foreign national’s immigration status is expiring in the near future, there are a few actions that can be taken at this time.

Contact the Nearest Embassy or Consulate for Your Home Country

Foreign nationals should first contact the nearest Embassy or Consulate of their home country to determine if any assistance is being provided by their home country to similarly positioned travelers. A foreign national’s home country may have options for returning to the foreign national’s home country that are only available to citizens. These kinds of options may offer the best chance to return to the foreign national’s home country in the short term.

Relief for Visa Waiver Entries

For foreign nationals who entered the United States through the Visa Waiver Program, USCIS and some U.S. Customs and Border Protection’s Deferred Inspection Sites are reviewing requests for satisfactory departure. Satisfactory Departure is a form of relief for foreign nationals who are unable to depart the United States due to an emergency. If approved satisfactory departure could allow a foreign national who entered under the Visa Waiver Program a maximum of 30 additional days to depart the United States. According to USCIS they are able to temporarily provide an additional 30-day period of satisfactory departure for Visa Waiver Program entries who are unable to depart because of COVID-19 related issues. This is the primary option for foreign nationals who entered under the Visa Waiver Program because they are ineligible to extend or change their status in the United States.

Think About the B Visa

If a foreign national’s immigration status is expiring, they have not entered the United States under the Visa Waiver Program, and they are unable to receive assistance from their home country, it may be worthwhile to file a petition to extend or change their status to the appropriate B Visitor classification. There are two types of visitor visas available, B-1, for business visitors, and B-2, for tourists. Foreign nationals who are present in the United States in another nonimmigrant status can file an application to change their status to the most appropriate B classification as long as there is a valid rationale for doing so. While neither classification grants employment authorization the B classification may be the best and only option to enable foreign nationals to remain in the United States for the time being.

Due to the fact specific nature of any US immigration filing, we recommend that your company contact counsel to evaluate and determine the best solution for the traveler and their family based on their situation.

Please contact your Baker McKenzie attorney for more information.

Authored by guest contributor, John Foerster.