Extension of stay: An option for Bahamians still in the US after Hurricane Dorian

By: Sasha Watson, Esq., HAWM Law

On September 1, 2019, Category 5 Hurricane Dorian made landfall on the Abaco Islands in the Bahamas. The hurricane caused extensive damage and displaced an estimated 14,000 nationals. Many of those individuals who have sought refuge with loved ones in the United States have found it difficult to navigate the US immigration system to obtain lawful permanent resident status or legal authority to work in the US.

The US immigration system is complex and unsympathetic to some of the real life situations that force individuals to flee their home country. The US has not extended temporary protected status to Bahamian nationals, which would have provided lawful stay and work authorization, as it did for Haitian nationals following the 2010 earthquake. As such Bahamians, in the US as a result of this devastating national disaster, without a US citizen or permanent resident immediate relative, such as a spouse, parent, if under 18, or a child over 21, will find it difficult to remain in the US with lawful immigration status.

In the interim, displaced Bahamians who remain in the US and who are unable to return temporarily as result of the devastation, while they reassess, rebuild and recover, should apply for an extension of stay in their nonimmigrant status. You may apply for an extension of stay in the United States if:

You were lawfully admitted into the United States as a nonimmigrant;
You have not committed any act that makes you ineligible to receive an immigration benefit, such as unauthorized employment or the commission of a crime;
You have not violated the conditions of your current admission and
Your passport is valid and will remain valid for the entire requested period of stay in the United States.

The US government assesses $455.00 filing fee for the processing of the application. However. All family members (spouse and unmarried children under 21) in the same category can be included on one Form I-539. It is also critical to also submit supporting documentation. This documentation should include:

A written statement explaining the reason for your request, why your extended stay would be temporary, including what arrangements you have made to depart from the United States and if the extended stay may have an effect on your foreign employment or residency.
A copy of your passport,  visa and I-94 card and
Proof of finances to support you during your extended stay
Proof of employment and leave therefrom, proof of repairs to property in the Bahamas or any other evidence to establish ties to the Bahamas
To bolster the application and increase the chance of approval, you should also obtain a sponsor, a US citizen or resident, who can attest to the temporary nature of your stay and that they, the sponsor, are financially able to provide room, board and cover any incidental expenses for you during your stay, if you do not have sufficient financial resources of your own.

An extension of stay application must be received by USCIS prior to the expiration of the current authorized stay indicated on your I-94. Late filing may be excused if you can demonstrate that the delay was due to extraordinary circumstances beyond your control. Late filed applications are rarely approved.

If your authorized stay expires while the extension of stay application is pending, you would technically be out of status, however, you do not accrue “unlawful presence” for purposes of inadmissibility and would not be subject to any future admission bar. If your application is approved, the approval will relate back to the date your Form I-94 expired, and your status while your application is pending will then be considered to have been lawful. If your application is denied, you will be required to depart the United States immediately. A denial would also void your US visa, requiring you to apply for a new one prior to your next trip to the US.

The government recommends that you apply to extend your stay at least 45 days before your authorized stay expires. However, current processing times can range anywhere between 4 to 7 months on average. As such, your I-94 authorized stay will most likely expire prior to a decision on your extension of stay application. Not to be discouraged, as of the end of September 2019, USCIS has approved 91% of extension of stay application. Therefore, the odds of approval are favorable, if you provide sufficient evidence to justify your request for an extension.