“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:
- you did not work without authorization, and
- filed a timely, legitimate case.
NOTE: If you do not fit one of these categories, then you will be considered a visa overstay. This is especially dangerous as many people file cases on their own or through an immigration law firm that does not have a chance of winning. For example, asylum cases are often filed by people who could never qualify for asylum based on the country they came from. Most of the time the immigration law firm will advise them that the case cannot prevail and the client will insist on filing it anyway to buy time in the United States. However, in the end, the asylum or other type of case filed will be denied and that will mean that the person who did not qualify will be considered a visa overstay. Unfortunately, when you are a visa overstay, you are faced with IIRIRA and that means that if you overstay by 6 months you will face a 3-year bar and if you overstay by a year you will face a 10-year bar. For this reason, always check with an immigration law firm before you file your case. Regrettably, immigration is not as easy to work around as many people think. There are a number of safeguards built into the system to make sure that people do not do these things and as a result there are punishments such as bars from the country that will be enforced.
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 only occurs if your case was frivolous (as mentioned above), untimely, or if you worked without authorization. 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 and should not have any visa overstay issues. 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, otherwise 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 a legitimate 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: Waivers are available under INA 212(d)(3)(A).”