I filed a change of status/extension of status petition. Can I stay in the U.S. while the petition is pending? What is unlawful presence?

If you are in the U.S. on a non-immigrant visa and you filed a change of status (“COS”) or an extension of status (“EOS”) petition, you may be wondering if you can stay in the U.S. while the petition is pending and you may be wondering if you are accruing an unlawful presence while the COS/EOS petition is pending.

You do not accrue unlawful presence if:

1. You filed a non-frivolous COS/EOS petition;
2. The application was received by USCIS before your current status expires;
3. You did not work without authorization before the COS/EOS petition was filed or while the petition is pending;
4. You maintained your status (you did not violate your non-immigrant status) prior to filing the change/extension of status application.

If all the above mentioned requirements are met, you can stay in the U.S. while your application is pending with USCIS and you will not accrue an unlawful presence while your petition is pending.

Your COS/EOS is ultimately approved

If your COS/EOS petition is ultimately approved, you will be granted a new period of authorized stay, retroactive to the date the previous period of authorized stay ended.

Example

You came to the U.S. on a B-1 visa and your I-94 expired on September 1, 2019. Your COS petition requesting a change of status to an E-1 status was received by USCIS on August 15, 2019. The petition was approved on November 20, 2019. Your E-2 status will be granted retroactively and the validity dates would be from September 2, 2019 until September 1, 2021. You would not accrue any unlawful presence.

Your COS/EOS is denied because the COS/EOS application was frivolous/you engaged in unauthorized employment

If your COS/EOS was frivolous or you engaged into unauthorized employment, you would start accruing unlawful presence immediately after your I-94 expires.

Example

You came to the U.S. on a B-2 tourist visa, and your I-94 tourist expired on June 1, 2019. While being in the U.S. on a B-2 visa for several months, you started working for a US company that was paying you in cash. You filed a COS application that was received by USCIS on May 15, 2019 asking to change your status to an O-1. On October 10, 2019 USCIS denied your application based on the fact that you engaged in an unauthorized work. In this case, you started accruing an unlawful presence on June 2, 2019 because you engaged in an unauthorized work while being in the U.S. on a B-2 visa.

Your COS/EOS is denied

If your petition is denied for cause, you begin to accrue the unlawful presence the day after your application is denied.

Example

You came to the U.S. on a B-1 visa, and your I-94 expired on June 1, 2019. You filed a COS application requesting to change your status to an O-1 visa. USCIS denied your application based on the fact that you did not meet the O-1 requirements on September 1, 2020. In this case, you would only start accruing unlawful presence on September 2, 2020. You should leave the U.S. as soon as possible when you find out that your application was denied to avoid accruing unlawful presence.

In addition, from June 2, 2019 (after your I-94 expired) until you leave the U.S., you would be considered to be “out of status” because you overstayed your visa. This is something you would have to disclose in any future visa application but is not a bar to get a visa.

So what if I accrue unlawful presence? What does it mean?

If you accrued an unlawful presence, this is something that you will have to disclose in your future visa applications. Accruing an unlawful presence is also relevant for the 3 and 10 year bars to come to enter U.S.:

3 year bar

If you were unlawfully present in the U.S. for more than 180 days but less than one year, and you left the U.S. prior to removal proceedings, you will be subject to a 3 year bar.

10 year bar

If you were unlawfully present in the U.S. for more than 1 year, you will be subject to a 10 year bar.

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