In short, based on legacy INS memoranda, current USCIS policy is to consider aliens to be in a period of stay authorized by the Attorney General when they have a pending change of status or extension of stay request or when they have a pending adjustment of status application.
When the individual is in Period of Authorized Stay, they do not accrue unlawful presence ( will look at unlawful presence later in the article in detail ). To be eligible for “Period of Authorized stay”, the individual should file the extension, transfer or COS petition on time before the I-94 expiration.
Similar concept of Period of authorized stay occurs during filing of adjustment of status using I-485 form with USCIS. Below is screenshot from USCIS website for official reference. Check Official Reference on USCIS.gov
Periods of authorized stay are only relevant when determining a noncitizen’s accrual of unlawful presence for inadmissibility purposes. [17] Although a noncitizen in a lawful immigration status is also in a period of authorized stay, the opposite is not necessarily true.
A pending adjustment application does not put an applicant in a lawful immigration status. For example, if USCIS previously denied adjustment of status to an applicant and the applicant reapplies for adjustment, the period the first application was pending does not count as time spent in lawful immigration status. 3.
USCIS only counts time physically spent in the United States in the R-1 nonimmigrant status towards the maximum 5 years of authorized stay. Officers should count only time spent physically in the United States in valid R-1 status toward the 5-year maximum period of stay.
I-485 Applicants: The period of time while a properly filed I-485 adjustment of status application is pending does not accrue unlawful presence.
What is My Status While a Change, Extension or Adjustment of Status is Pending? If a nonimmigrant timely applies for an extension of stay or a change of status, he or she is generally permitted to remain in the United States while the application is pending, even if his or her I-94 expires during the pending period.
Yes, you can file if the change of status is pending. Yes, you can stay in the U.S. until there is a decision.
Generally, if you have a pending Form I-485 and you leave the United States without an advance parole document, you will have abandoned your application.
While the I-485 application is pending, an alien can enjoy several benefits such as entering the U.S. under Advance Parole (AP) and permission to work in the U.S. using Employment Authorization Document (EAD).
When you use AOS, you'll be able to stay in the United States while your application is processed, even if your visa expires before your green card is approved.
Yes, you can work in the United States while your adjustment of status application is pending if you have a valid Employment Authorization Document (EAD). You can't work in the United States without an EAD. People applying for an adjustment of status are welcome to apply for work authorization as well.
The adjustment of status timeline is generally 8 to 14 months for family-based applications (and often longer for other application types). However, the most significant advantage to adjusting status is that the intending immigrant may remain in the United States with family during the process.
USCIS has said that only one I-485 per applicant may be filed at a time. If more than one I-485 is pending, USCIS may request that one of the I-485s be withdrawn.
More so, Form I-485 can be filed while a Form I-140 is still pending in some cases. However, you cannot file concurrently unless your priority date is “current” and your PERM has been approved. A priority date is the date the PERM was filed, and you can see if that date is current on the USCIS visa bulletin.
Yes, USCIS allows a person to file multiple I-485 applications under different visa categories.
What does “Period of Stay Authorized by the Attorney General” mean in determin ing “Unlawful Presence”? When an alien files an application for extension of stay, on time, but the application is denied, the alien becomes out of status after the date of denial.
An alien is “in status” if they are within the period of authorized admission. Thus, an alien will be within a period of stay authorized by the Attorney General, and not out of status while an EOS or COS is pending, if the alien filed the application before the date of departure on their I-94.
The second application was denied because it was filed after the original B-2 expired, and so it was untimely. The alien became unlawfully present in ...
Many people, recently, have attempted to stay within the U.S. without being in “unlawful presence” by filing additional applications for extension of stay or change of status while an already file application is pending, i.e., awaiting a decision on the first application. These secondary applications are filed based on the premise that the “period of stay authorized by the attorney general” is the same thing a status, so that an alien is in “status” and not in the U.S. unlawfully, while the application is processing, and therefore an alien can continuously file an EOS or COS and thereby avoid being in unlawful presence in the U.S. Unfortunately, this is not the case. Rather, when an alien files an application for EOS or COS on time, but that is denied, they can begin to be in unlawful presence after the date of the denial, even if they have filed additional, but late, requests for EOS or COS that are pending. Filing such a request on time, however, does continue the alien’s period of authorized stay in the U.S., which allows them to avoid unlawful presence, but does not extend the alien’s period of “authorized status.”
Thus, an alien may extend their stay or change their status only if they have been admitted until a specific date, and their applications for EOS or COS were f iled before their I-94 has expired.
Filing such a request on time, however, does continue the alien’s period of authorized stay in the U.S., which allows them to avoid unlawful presence, but does not extend the alien’s period of “authorized status.”.
An extension of stay or change of status may be approved if the applicant maintained – that is, the alien is within the period of authorized admission – their status before the application was filed. If an alien is out of status, i.e., in the U.S. beyond the stated date of authorized admission, the application will be denied.
The Act does explicitly toll accrual of unlawful presence at INA 212(a)(9)(B)(iv) for up to 120 days while a timely filed extension or change of status request is pending. This 120-day period has been extended by legacy INS memoranda to include the entire period during which an extension or change of status request remains pending.5Again, this is only Service policy and does not exist in any binding regulations or statutes.
INA 237(a)(1)(C) makes deportable any alien who is present in the United States in violation of law. Only aliens who are in a currently valid nonimmigrant status, or who are lawful permanent residents, are clearly not deportable under this section. Those who are out of status and have no applications pending are clearly deportable under this section. But there is a large gray area for those who have pending applications for adjustment of status but no nonimmigrant status; and for those who have timely filed applications for extension or change of status pending and whose prior status has expired. It is unclear whether such aliens are present in the United States in violation of law and thus deportable under INA 237(a)(1)(C) based on a plain reading of the Act.
INA 237 (a) (1) (C) makes deportable any alien who is present in the United States in violation of law. Only aliens who are in a currently valid nonimmigrant status, or who are lawful permanent residents, are clearly not deportable under this section. Those who are out of status and have no applications pending are clearly deportable under this section. But there is a large gray area for those who have pending applications for adjustment of status but no nonimmigrant status; and for those who have timely filed applications for extension or change of status pending and whose prior status has expired. It is unclear whether such aliens are present in the United States in violation of law and thus deportable under INA 237 (a) (1) (C) based on a plain reading of the Act.
In short, based on legacy INS memoranda, current USCIS policy is to consider aliens to be in a period of stay authorized by the Attorney General when they have a pending change of status or extension of stay request or when they have a pending adjustment of status application. Prior to creation of the Department of Homeland Security, this was the INS position across the board, whether it be for the purpose of determining whether someone had triggered the 3 or 10 year bar, or whether they were deportable. However, since the various immigration functions have splintered with the creation of Homeland Security, CBP and ICE no longer follow USCIS interpretations. It appears, based on recent events discussed below, that CBP and ICE have made a radical departure from USCIS on the interpretation of when an alien is in a period of stay authorized by the Attorney General, and thus when they will place an alien in removal proceedings under INA 237(a)(1)(C) for being present in the U.S. in violation of law.
Despite the fact that INA 212(a)(9)(B)(iv), on its face, only tolls unlawful presence for up to 120 days, 8 CFR 274a.12(b)(20) provides an automatic 240-day extension of employment authorization, following expiration of the previously authorized status, to certain nonimmigrants who have timely filed a petition for extension of stay with the same employer.
In an August 20, 2008 AILA/ CBP liaison meeting between members of the Upstate NY Chapter of AILA and local CBP and Border Patrol agents, the following exchange took place6
There are two major causes of this phenomenon. The first is the splitting up of the adjudications and enforcement branches of the immigration service, causing a fractured approach to legal questions. The second is the government's practice of legislating fundamental immigration legal issues through non-binding memoranda. The issue of whether or not someone is legally present in the United States is a fundamental question over which different agencies within the Department of Homeland Security should not have opposing policies.
My question is regarding how long can I stay in US, while my MTR is pending?
You present a very complex set of facts, and need to consult an immigration lawyer.
Period of authorized stay by the Attorney General, also known as period of authorized stay or POSABAG, grants a nonimmigrant a period of time which he/she can remain in the United States even though the individual may not be holding lawful status. This period of authorized stay is only granted when a request to change ...
So, if an individual is out of status, but is not unlawfully present, then departure from the United States will not trigger any inadmissibility bar. As you can see, the effects of being out of status, i.e.
If an individual did have a pending application or petition before his/her I-94 expired, then despite being out of status, the individual is in a period of authorized stay. This essentially tolls the accrual of unlawful presence until a final decision is made by USCIS on the individual’s case. However, if USCIS denies the application or petition, then the individual begins accruing unlawful presence from the date of the denial and must leave the United States to avoid triggering any immigration issues.
It is important to understand the nuances of lawful status, period of authorized stay, and unlawful presence in order to ensure you are maintaining lawful status. These similar yet distinct concepts carry with it different meanings and effects on a nonimmigrant’s immigration status. Remember, each individual case has its own set ...
Unlawful presence carries with it severe penalties that can be triggered once a nonimmigrant leaves the United States. It can automatically invalidate the nonimmigrant’s visa stamp and trigger the inadmissibility bar once the individual leaves the United States. For example, unlawful presence of more than 180 days triggers a three-year bar once the individual leaves the United States. Inadmissibility comes to play once an unlawfully present individual departs the United States. So, if an individual is out of status, but is not unlawfully present, then departure from the United States will not trigger any inadmissibility bar.
The three biggest terminologies when it comes to determining an individual’s lawful status in the United States are lawful status , period of authorized stay , and unlawful presence. These concepts are related yet distinct, so it is important to understand how they differ and impact an individual’s immigration status.
Lawful status. Lawful nonimmigrant status allows temporary stay or employment to a nonimmigrant in the United States. Lawful status is determined by the individual’s I-94, which can be issued by the U.S. Citizenship and Immigration Service (USCIS) or the U.S. Customs and Border Protection (CBP).
When the individual is in Period of Authorized Stay, they do not accrue unlawful presence ( will look at unlawful presence later in the article in detail ). To be eligible for “Period of Authorized stay”, the individual should file the extension, transfer or COS petition on time before the I-94 expiration. If the pending extension, transfer or COS petition is approved, then it will have retroactive effect on the individual’s lawful status. Meaning that, if your petition is approved, your “out of status” situation from I-94 expiry date is not counted as “out of status”, but rather you will be considered to be in proper status past your I-94 date until current date as your petition with USCIS was approved. But, let’s say your petition gets denied, then your stay between I-94 expiration, until the date of denial of petition is not counted towards unlawful presence. But, you will only accrue unlawful presence from the day of your Extension, Transfer or COS petition denial. See below image that articulates the same.
Below are the implications of accrual of unlawful presence. If you accrue or have more than 180 days of unlawful presence, then you will be bar from entering in US for 3 years ( meaning you cannot get any US visa to enter for 3 years) If you accrue more than 1 year of unlawful presence, you will be bar from entering US for 10 years ...
When foreign nationals arrive in US and go through US Port of Entry Procedures, they show their valid US Visa in passport and supporting documentation related to their Visa to CBP officer . The CBP officer examines the Visa in passport and the foreign national’s eligibility for that visa. If the CBP officer is convinced, the officer will allow them to enter US on that same visa category as in the passport, thus granting them Lawful status for that visa in their passport.
The most common situation for this occurs when an individual applies for Extension of Status, Transfer or Change of Status (COS) with USCIS. If the individual applies for Extension of Status, transfer or COS before their I-94 expiration, but USCIS does not adjudicate the petition before their I-94 expiry, then the individual is categorized ...
If someone says, you are out of status, it means that either your I-94 has expired or you have violated your terms of stay in US. Below are some examples.
The way you maintain your visa status in US is by simply following the rules and regulations tied to your status. You cannot really engage in any activities that violate your visa status. Below are couple of examples on maintaining visa status:
If the CBP officer is convinced, the officer will allow them to enter US on that same visa category as in the passport, thus granting them Lawful status for that visa in their passport. Lawful Status in Passport, Validity of I-94 : As part of the process of allowing the individual into US, the CBP officer puts a stamp in the individual’s passport, ...
Unlawful presence usually starts when a foreign national remains in the U.S. beyond the expiration date noted on his/her I-94 without having a pending application or petition to extend, change, or adjust status. Typically, days of unlawful presence continue to accrue until the individual leaves the United States. If s/he does have a properly filed application or petition pending, and the case is denied, the foreign national must depart the United States immediately or accrue unlawful presence beginning from the denial date.
Unlawful presence of more than 180 days also results in a three-year inad missibility bar, once the foreign national departs the United States. A period of one year or more of unlawful presence results in a ten-year bar upon departure from the U.S. If one is out of status, but not accruing unlawful presence, a departure from ...
A foreign national also begins to accrue unlawful presence upon the denial of an I-485 application if the applicant does not hold valid nonimmigrant status. Further, an individual starts amassing unlawful presence when the U.S. Department of Homeland Security (DHS) or an immigration judge makes a determination or finding of a status violation. A foreign national not inspected and admitted by CBP at the time of entry is also unlawfully present in the United States.
Lawful nonimmigrant (temporary) status generally is designated by an unexpired arrival / departure form (I-94) , issued to the foreign national either by the U.S. Customs and Border Protection (CBP ), usually issued electronically, or by the U.S. Citizenship and Immigration Service (USCIS). The I-94 alone, however, is not enough to hold valid nonimmigrant status. It also is necessary for the foreign national to act in compliance with his/her particular lettered classification. For example, an individual in H1B status must work for the petitioning employer, while one who is in H-4 status, who does not have work authorization, is prohibited from working altogether. Generally, a person who fails to comply with the assigned status is no longer considered to be in lawful nonimmigrant status (i.e. out of status). In some instances, as discussed more fully below, for F, M, and J nonimmigrants, failure to act in compliance with one’s status results in unlawful presence.
Generally, a person who fails to comply with the assigned status is no longer considered to be in lawful nonimmigrant status (i.e. out of status). In some instances, as discussed more fully below, for F, M, and J nonimmigrants, failure to act in compliance with one’s status results in unlawful presence.
In most situations, if the individual’s status subsequently expires while the request to change or extend status is pending, the foreign national falls out of nonimmigrant status, but remains in a period of authorized stay. This period of authorized stay continues until the USCIS issues a decision on the pending case.
A violation of status can also make it more difficult for one to obtain future immigration benefits, such as a visa approval or an extension of status. Furthermore, for individuals in F, M, or J status, a violation of status would trigger unlawful presence.
2. Adjustment. A pending adjustment application does not put an applicant in a lawful immigration status. For example, if USCIS previously denied adjustment of status to an applicant and the applicant reapplies for adjustment, the period the first application was pending does not count as time spent in lawful immigration status.
A pending application to extend or change status ( Form I-129 or Form I-539 ), a pending adjustment application, or a pending petition does not confer lawful immigration status on an applicant. In addition, a pending application or petition does not automatically afford protection against removal if the noncitizen’s status expires after submission of the application. The noncitizen may have no actual lawful status in the United States and may be subject to removal proceedings unless and until the extension of stay (EOS) application, change of status (COS) application, adjustment application, or petition is approved.
If USCIS ultimately approves the EOS or COS application, then the noncitizen is considered to be in lawful immigration status on the date the adjustment application is filed. If USCIS denies the EOS or COS application, then the noncitizen is generally considered to be in unlawful immigration status as of the expiration of ...
B. Unlawful Immigration Status. A noncitizen is in unlawful immigration status if he or she is in the United States without lawful immigration status either because the noncitizen never had lawful status or because the noncitizen’s lawful status has ended.
Citizenship and Immigration Services (USCIS) is issuing policy guidance addressing the general policies and procedures of adjustment of status as well as adjustment under section 245 (a) of the Immigration and Nationality Act (INA). No historical versions available.
On the day after the noncitizen’s authorized status has been violated, has expired, been rescinded, revoked, or otherwise terminated while he or she is physically present in the United States.
The B-2 nonimmigrant visitor’s authorized stay expires, as indicated on the Arrival/Departure Record (Form I-94).