I filed my extension of status application late – after my status already expired. Will my application be automatically denied? What should I do?

By September 17, 2020December 2nd, 2020Immigration

If you are in the United States and decide you want to stay for a longer time than you were given when you entered, you can apply to extend your status by filing an Application to Extend Nonimmigrant Status with the USCIS.

Due to Covid-19 an its unprecedented impact on travel, many people who are currently in the U.S. had to file an extension of status application with USCIS.

Example

You are in the U.S. on a B-2 visa and your current status expires on September 20, 2020. You want to extend you B-2 status for 6 months.

In this scenario, USCIS has to receive your extension of status application by September 20, 2020, otherwise it will be considered a late filing.

What happens if your application is received by USCIS after your status already expired?

This could happen for example if the mailing of the application got delayed (application got lost) or for example if USCIS rejects your check/credit card form.

If USCIS receives your application after your status already expired (after September 20, 2020 in the example above), you could ask USIS to consider the late filing under section 8 CFR 214.1(c)(4).

This section indicates that if the delay was due to extraordinary circumstances beyond your control, USIS has a discretion to grant you relief and consider the filing as timely. Please note that USCIS has a complete discretion whether it will approve or deny your request. You will need to meet the following requirements:

  • The delay was due to extraordinary circumstances beyond your control and the Service finds the delay commensurate with the circumstances

 You will have to explain how were the circumstances extraordinary and beyond your control and how is the delay commensurate – e.g. if you find out that your credit card was decline on September 22 and you file the request under section 8 CFR 214.1(c)(4) on November 1, that would most likely not be viewed as commensurate);

  • You have not otherwise violated your nonimmigrant status (e.g. you did not work while in the U.S. on a B1/B2 visa);
  • You remain a bona fide nonimmigrant; and
  • You are not the subject of deportation proceedings under section 242 of the Act (prior to April 1, 1997) or removal proceedings under section 240 of the Act.

What is my status in the U.S. once my I-94 expires?

If you submit a request to USCIS based on section 8 CFR 214.1(c)(4), you can stay in the U.S. while the petition is pending, but once your I-94 expires, you are accruing unlawful presence.

If USCIS approves your late filing and your extension of status petition, the approval will be backdated and you would have not accrued any unlawful presence. In the example above, if the petition is approved, the approval will be backdated to September 21, 2020 until March 21, 2021.

If your request for late filing and your extension of status is denied, then you would have been accruing unlawful presence from September 21, 2020. Please note that if you accrue more than 180 days of unlawful presence, you will be barred from the U.S. for 3 years. Therefore, in the example above, you should leave the U.S. before March 19,  2021 so you don’t accrue more than 180 of unlawful presence (that would mean that you would be barred from the U.S. for 3 years). Please note that if USCIS ultimately approves your petition, it will be backdated to September 21, 2020 and it is fine if you have meanwhile left the U.S. Please see more about this when you click here

Please read more about extension of status and unlawful presence when you click here.

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