The short answer is yes, if you filed your extension before the expiration of your original stay, you can remain in the U.S. and wait for the outcome of the pending extension.
Once your original status expires and you have timely filed for an extension for your B1/B2 status, you enter a “period of stay authorized by the attorney general”, which is not lawful status based on a immigration benefit, but is an authorized period of stay at the discretion of the attorney general of the U.S. In simple terms, USCIS and immigration authorities promise not to deport or otherwise attempt to remove individuals who are in a period of stay authorized by the attorney general.
The key to having the ability to stay in the U.S. during a pending extension of B1/B2 status using Form I-539, Application to Extend/Change Nonimmigrant Status is that an applicant must file for an extension before the date of expiration of their status in the U.S. as identified in their I-94 digital record.
An applicant is considered out of status when their Form I-94 expires, even if they have timely applied to extend your nonimmigrant status. Generally, as a matter of
discretion, USCIS will defer any removal proceedings until after the pending petition is adjudicated, because the applicant is in a period of stay authorized by the attorney general.
Even though the applicant is not actually in a lawful nonimmigrant status, the applicant does not accrue “unlawful presence” for purposes of inadmissibility under section 212(a)(9)(B) of the Immigration and Nationality Act, while your extension of status application is pending
if it was filed prior to the expiration of Form I-94. Unlawful presence does not acrue because while the case is pending, the applicant is within the period of authorized stay.
It is essential to understand that once the Form I-94, which indicates the duration of an individual’s authorized stay, expires, they are considered out of status. Staying beyond the I-94 expiration date without a pending application can lead to unlawful presence under section 212(a)(9)(B) of the Immigration and Nationality Act, which could have serious consequences for future immigration endeavors.
Issues to consider when preparing to file for an extension of B1/B2 status:
- File on time: The most critical aspect of remaining in the U.S. during the extension process is to submit the application before the expiration date on the Form I-94. Late filings may lead to a denial and, consequently, the initiation of removal proceedings.
- Traveling outside the U.S.: If an applicant travels outside the U.S. while the extension is pending, the application will be considered abandoned, and they will need to reapply for a new visa at a U.S. consulate or embassy abroad, or re-enter if the visa is still valid.
- Employment authorization: B1/B2 visa holders are generally not allowed to work in the U.S. Filing for an extension does not grant automatic work authorization. If the applicant seeks employment, they must independently qualify for authorization to work in the U.S.
- Consistent status: While the extension is pending, the applicant must maintain their original nonimmigrant status and comply with all visa conditions.
We pride ourselves on being an exceptional legal partner for individuals seeking assistance with their immigration matters. We have built a reputation for providing top-notch legal services and guiding our clients through U.S. immigration matters of all levels of complexity with utmost professionalism and dedication.
Our team understands the importance of maintaining lawful status while navigating the extension process. We are well-versed in the intricacies of B1/B2 visa extensions and other temporary status filings, ensuring that our clients’ applications are handled efficiently and effectively.
If you find yourself in need of professional assistance with filing for an extension of your temporary status in the U.S., look no further. We are ready to help you navigate the complexities of the extension process, ensuring you remain in compliance with U.S. immigration laws. Reach out to us here.