April 22, 2003

New Interpretations: Did You File an Extension or Change of Your Status? Are You Sure You Are Not Accruing Unlawful Presence?

On April 21, 2003, the Bureau of Citizenship and Immigration Services (BCIS) released an internal memo discussing and clarifying its interpretation of "period of stay authorized by the Attorney General" in the context of determining whether a foreign national has accrued "unlawful presence" and maintenance of "status" while in the U.S. When or how unlawful presence is accrued is critical due to the fact that time spent in the U.S. unlawfully can potentially bar a foreign national from obtaining any other lawful status in the U.S., as well as from obtaining a visa from a U.S. consulate or embassy abroad to enter the U.S.

Generally, when a foreign national is in the U.S. and his or her status is about to expire, as long as an extension of status or change of status request is filed before the current status expires, he or she may remain in the U.S. while the request is pending without accruing "unlawful presence." Originally, this tolling period was limited by regulation to 120 days. However, due to the fact that BCIS processing times often exceed 120 days, the BCIS implemented a revised policy in March 2000 extending the tolling period from 120 days to the length of time the request is pending at BCIS. It is very important to note that this tolling period applies only to those whose I-94 cards expired while the extension or change of status was pending.

The BCIS memo basically reiterates and clarifies the distinction between maintaining "status" and "period of stay authorized by the Attorney General." This is important because for an extension of status or a change of status to be approvable, the applicant must have maintained his or her "status" prior to filing. An applicant’s "status" expires on the date stated on his or her I-94 arrival/departure card issued at the port of entry or issued by the BCIS subsequent to later filed petitions. After the expiration of the I-94 card the individual will be considered to be "unlawfully present" in the U.S. Therefore, when filing an extension or change of status request, it is not enough to prove that the individual was in the U.S. during a "period of stay authorized by the Attorney General," there must be a showing that the request was filed before the individual’s "status" expired.

For example, in a typical factual scenario, John Smith a Brazilian citizen enters the U.S. in B-1 status as a visitor for business on January 1, 2003 and his I-94 card is stamped with an expiration date of July 1, 2003. This means that he would have to leave the U.S. on or before July 1, 2003 to avoid accrual of unlawful presence. However, if Mr. Smith finds an employer who sponsors him for an H-1B, if the H-1B petition with a request for a change of status from B-1 to H-1B is filed on or before July 1, 2003, Mr. Smith will be authorized to stay in the U.S. until the BCIS makes a final decision. During this time Mr. Smith does not accrue unlawful presence. However, from July 2, 2003, Mr. Smith is no longer "in status." This means from that date he is no longer eligible for a change of status or extension of status request filed after his status has expired. If the BCIS ultimately denies the petition, then Mr. Smith will begin accruing unlawful presence from the date of denial and should depart the U.S. in a timely fashion, there is no grace period. In addition, to avoid reentry bars he should depart before accruing 180 days of unlawful presence.

The importance of the BCIS distinction becomes apparent when the factual scenario becomes more complex. In Mr. Smith’s case, for example, if the BCIS issues a request for evidence that signals a possible denial of the H-1B, Mr. Smith may then decide to also file a request to extend his B-1 status just in case the H-1B is denied. If his extension request for the B-1 is filed before July 1, 2003, then if the H-1B is denied he can lawfully remain in the U.S. while he waits for a final decision to be made on this new B-1 extension request. However, if Mr. Smith files the B-1 extension anytime after July 1, 2003 while the H-1B is pending, then he did not file this request while he was in "status." This means that this B-1 extension does not provide him with a tolling period that was provided with the timely filing of the H-1B change of status request. Therefore, when the H-1B is denied, he will begin accruing unlawful presence as of the date of denial regardless of the fact that he has a B-1 extension pending at BCIS.

When strategizing on the filing and timing of petitions, it is very important to understand and apply the distinction between maintaining "status" and "lawful presence." Otherwise, the foreign national may risk filing applications that are not approvable at the time of filing for failure to maintain "status," which in turn could jeopardize his or her eligibility for immigration benefits from the BCIS or the Department of State. Maintaining an open dialogue with immigration counsel while making such decisions is very important to ensure that all parties understand the implications of status expiration dates and requests filed with the BCIS.