Satisfactory Departure for Visa Waiver Entrants and Nonimmigrant Visa Holders
Satisfactory Departure is a regulatory provision by which Visa Waiver Program (VWP) entrants may be granted an additional 30 days to depart the United States if, due to an emergency, they cannot depart before their 90-day authorized stay expires. Traditionally, Satisfactory Departure has been granted only in limited and extreme circumstances. However, U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs and Border Protection (CBP) have both recently announced that they are considering COVID-19 related travel restrictions or illness in granting Satisfactory Departure to VWP visitors. Unfortunately, there is currently no equivalent of Satisfactory Departure for nonimmigrant visa holders.
How to Apply for Satisfactory Departure
Under normal circumstances, VWP entrants could apply for Satisfactory Departure at limited CBP locations or at local USCIS field offices. However, because USCIS field offices have suspended in-person services since March 19 due to COVID-19 concerns, CBP is now accepting applications for Satisfactory Departure at all ports of entry and Deferred Inspection Sites. While the USCIS currently invites VWP entrants to call the USCIS Contact Center to request Satisfactory Departure, Gee & Zhang recommends applying for Satisfactory Departure in-person at a CBP port. In doing so, the CBP officer can issue an updated I-94 reflecting the Satisfactory Departure extension. In contrast, it is currently unclear how the USCIS updates I-94s that are maintained by CBP and what is provided to applicants documenting such an update.
Because grants of satisfactory departure are made at the discretion of the reviewing CBP officer, Gee & Zhang advises applicants to prepare sufficient evidence to support their requests. This evidence may include:
- Evidence of lawful entry into the U.S., including your passport, ESTA approval, and admission stamp.
- Evidence that you are unable to depart the U.S. before your authorized stay expires due to the COVID-19 pandemic, such as a cancelled flight notice.
- Evidence that you will be able to depart the U.S. if granted Satisfactory Departure, such as adequate funds in a bank account to purchase return airline tickets or a refund/exchange notice for your previously booked tickets.
When to Apply for Satisfactory Departure
You must apply for Satisfactory Departure before your period of authorized stay under VWP expires. Overstaying this authorized period can have serious consequences of your future immigration benefits, including being prohibited from using ESTA in the future. Because of the uncertainty regarding when COVID-19 travel restrictions Gee & Zhang advises all VWP travelers in the U.S. to apply for Satisfactory Departure two weeks prior to the expiration of the I-94, if you believe that you may not be able to depart the U.S. as previously planned.
Additional 30-Day Extensions for Satisfactory Departure
USCIS and CBP have recently announced that VWP travelers who have already received a 30-day extension under Satisfactory Departure may apply for an additional 30-day extension due to ongoing COVID-19 challenges. The application requirements are the same as for the initial Satisfactory Departure extension.
No Satisfactory Departure Provision for Nonimmigrant Visa Holders
Because there is no Satisfactory Departure provision for nonimmigrant visa holders, our emphatic and straightforward guidance for holders of nonimmigrant visas is to apply for an extension as soon as possible. Due to extreme delays in USCIS processing times, we advise filing applications for nonimmigrant visa extensions at the earliest eligible date which is 6 months prior to the I-94 expiration date. In certain work-authorized visa categories, including H-1B, E-2, O-1, and TN, timely filing of an extension of status will authorize the foreign national to continue working in the U.S. for the same employer while the extension application is pending, up to an additional 240 days beyond the I-94 expiration.
In other categories, such as H-4 and L-2 spouses of visa holders, there is no automatic extension of work authorization. These nonimmigrant visa holders should be especially vigilant to file their extensions as early as possible to minimize the risk of a gap in work authorization while awaiting USCIS’ currently extended processing times.
Because there can be severe consequences for nonimmigrants who overstay their I-94 expiration date, we urge those whose I-94 status is expiring within the next 6 months to contact a Gee & Zhang attorney as soon as possible to begin preparing the relevant extension application to file with USCIS.
We continue to monitor immigration developments and challenges related to COVID-19, and we are here to help you navigate these uncertainties and achieve your immigration goals.