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Does an individual with a pending adjustment of status application continue to accrue unlawful presence?

A woman considering the answers to her questions

In addition to complying with their visa status, one of the key things for anyone in the United States on a visa must keep in mind is when their I-94 expires. The I-94 “admit until” date defines when the individual will begin accumulating “unlawful presence.” If the individual remains in the United States after their I-94 expires and they have not timely filed an application to change, extend, or adjust their status, they will begin accumulating unlawful presence. To check one’s I-94, please visit the CBP’s website here.

What is unlawful presence, and what are its consequences?

Unlawful presence, as described here, must be disclosed on future visa applications, and can lead to the individual being barred from entering the United States for three or ten years. Unlawful presence is different from unlawful status.

If an individual visits the United States on a B-2 visitor visa, for example, and is issued a Form I-94 with an expiration date of February 1, the individual starts to accumulate unlawful presence starting on February 2. However, if they properly filed with USCIS an application to extend or change their status before the I-94 expires on February 1, they would not accrue unlawful  presence.

On the other hand, if they file the application to extend or change their status after the I-94 expires on February 1, the pending application to change or extend their status would not serve to stop the accumulation of unlawful presence. In other words, for a properly filed application to change or extend status to stop the accrual of unlawful presence, the application must be received by USCIS while the applicant is in valid status – meaning before their I-94 expires.

A question that frequently comes up is whether an individual whose I-94 has expired continues to accrue unlawful presence if they have properly filed an application to adjust status.

What is adjustment of status, and what does it mean to “properly file” an adjustment of status application?

Adjustment of status is another name for applying for permanent residency – or a green card – from within the United States. The application to adjust status, also called the Form I-485, is filed with U.S. Citizenship and Immigration Services, or USCIS.

An adjustment of status application is “properly filed” when it is complete, signed, and the fee is paid. The application should also be sincere and should not be frivolous.

Does an individual with a pending adjustment of status application continue to accrue unlawful presence?

No – a properly filed application to adjust status stops unlawful presence from accruing. This is the case even if the adjustment of status application is filed after the I-94 expires.

For example: Diego entered the United States on a B-2 visa, and his I-94 expired on February 1. He stayed after his I-94 expired, and therefore started accumulating unlawful presence on February 2. However, on March 1 he properly filed an adjustment of status application. By doing so, he stopped accumulating unlawful presence on March 1.

In this example, the unlawful presence that Diego accumulated before March 1 would not be forgiven – in other words, he would still have several weeks of unlawful presence that he would need to disclose on any future visa applications. However, he would not accumulate additional unlawful presence for as long as the application to adjust status is pending with USCIS.

What if the adjustment of status application is ultimately denied?

If the adjustment of status application is denied, the applicant would once again begin accruing unlawful presence on the day after the denial.

Continuing with the prior example, Diego’s application to adjust status, which was filed on March 1, is denied on October 1. If he chooses to remain in the United States, he would continue to accrue unlawful presence starting on October 2.

If Diego were to leave the United States on October 3, and to later apply for a visa at a consulate, the consular officer would, when determining whether Diego is inadmissible, only count the time between the expiration of Diego’s I-94 and his filing of the application to adjust status, and the time between the denial of the application to adjust status and his departure from the U.S. The officer will not count the time during which Diego’s application to adjust status was pending with USCIS.

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