NONIMMIGRANT AUTHORIZED STAY
Nonimmigrant authorized stay is an area many clients struggle with. There are so many factors involved in the process of obtaining a Change or Extension of Status. As a result there is a lot of confusion out there as to whether someone has obtained their nonimmigrant authorized Stay or not.
If you apply for a Change of Status or Extension of Status you will be considered here legally until a determination is made as long as:
1. You did not work without authorization, and
2. Filed a timely, legitimate case.
Even if it takes the government more than 120 days to approve the case, you do not start the clock for unlawful presence (i.e. the 3 and 10-year bar issues). However, if the case is denied, Unlawful Presence begins as of the date of the expiry of the last I94 you had–double edged sword! However, the good news is that it only occurs if your case was frivolous (many asylum cases), untimely, or if you worked without authorization. Therefore, if you need assistance with any aspect of immigration law, including immigration waivers and immigration appeals, it is recommended that you speak to an immigration lawyer immediately. Also, if you didn’t do one of those three things, and depart during a Change (one visa to another) or Adjustment (to Green Card) of Status case, you will not be subject to the 3-year and 10-year bars.
F visa and J visa persons often have visas with a stamp called D/S which stands for “Duration of Status”. These people do not accrue Unlawful Presence unless a Judge or the USCIS has determined that the Duration ended. Interestingly, this rule applies to Canadians who cross the border but not offered I94s (keep your evidence to prove what you say about the date of entry is true).
If you file for Change of Status, you are not in unauthorized stay as long as your case has not been decided and you did not work without authorization. In other words, you are in authorized stay until your case is decided. Say you enter on a B1 Visitor for Business or B2 Visitor for Pleasure. You file a nonfrivolous case for an extension before the first stay expired. Of course, your I94 has expired and it has been 3 months since you heard from the USCIS. You are considered to be in authorized stay. This is the case, even if it takes them more than 120 days (I will explain the 120-day rule shortly). BUT if the case is ultimately denied, your Unlawful Presence starts from when your I94 expired so be very careful it does not exceed six months (3-year bar kicks in. But, you may have trouble entering again anyway as they are not crazy about overstays! BUT that only applies if it was frivolous, not filed on time or because you worked without authorization. If these conditions are met and you believe you need assistance with an immigration appeal, it is always recommended to speak to a legal professional. If these conditions were not met you are fine and presence starts when the original case is denied. If you were a D/S (duration of status, such as F visa or J visa) then it only starts when the case is denied, EVEN if denied for being frivolous, untimely or due to unauthorized employment.
As to the 120-day rule, 8 USC (United States Code….the federal laws) Section 1182(a)(9)(B)(iv) states that the 3-year bar timeline is tolled for 120 days if you were lawfully paroled (they let you in) or admitted (you gained a status) , filed alegitimate case before your status expired, and did not work without authorization. There are arguments both ways as to whether the case should ultimately be approved or not.
KEY: The bars do not count the time cumulatively. In other words, if you stayed 3 months this year and 3 months next, they are not added together.
KEY: Immigration waivers are available under INA 212(d)(3)(A).
We hope this article has explained to you what you did not know about non-immigrant authorized stay so you can take better care of yourself!