Maintaining Status and the Nonimmigrant Extension Nightmare

World events and political changes over the past couple of years have exposed the different faces of the American people. As a whole, American patriotism has become more visible. But this wave of patriotism has also diluted some of the founding principals upon which our country stands. Like the pilgrimage of past generations, immigrants today provide an endless stream of talent, ingenuity, and creative abilities that ultimately deepen the fabric of our society and represent the continuation of our tradition as a nation of immigrants. Regrettably, efforts to “protect” and “defend” have made it increasingly difficult for foreign nationals to enter and remain in the United States. In particular, maintaining lawful nonimmigrant status has increased in complexity and violators are facing severe penalties for minor, technical breaches of the law. It is essential for nonimmigrants to know the consequences of failing to maintain lawful status and the related issue of “unlawful presence.”

Upon entering the United States nonimmigrants are issued an I-94 card indicating a period of authorized stay. Remaining past the specific date without applying for an extension or change of status is a violation of status and starts the accumulation of “unlawful presence.” For individuals admitted without an I-94 card (Canadians) or those with I-94 cards marked "D/S" for duration of status (students), the accumulation of “unlawful presence” does not begin until a determination of the status violation is made by the Immigration and Naturalization Service (now the Bureau of Citizenship and Immigration Services, hereafter “BCIS”) or an Immigration Judge. “Unlawful presence” that exceeds 180 days or one year will result in a three or ten year bar upon exiting and reentering the country. Other penalties for exceeding authorized stay may include immediate removal, inability to extend or change status, cancellation of any visa used to enter the country, or inability to adjust to permanent residence status.

Engaging in employment without authorization or taking part in activities not consistent with the status in which a person was admitted may not start the “unlawful presence” clock, but such actions will cause a nonimmigrant to fall “out of status.” Every nonimmigrant classification has specific rules that must be complied with in order to maintain lawful status. For example, visitors in B status must not engage in employment or full-time study; specialty occupation workers in H-1B status must maintain continuous employment with their authorized employer; entertainers in P status may only work in the performer capacity upon which the status was granted; dependents in H-4 status may attend school but cannot work; and students in F or M status must continue a full time course of study and not work outside regulatory parameters.

The federal regulations in section 214.1 indicate, “an extension of stay may not be approved for an applicant who failed to maintain the previously accorded status or where such status expired before the application or petition was filed.” The BCIS issued a memo in March 2000 concerning “unlawful presence” and the period of authorized stay as specified on form I-94. It was confirmed that a timely-filed nonfrivolous application to extend or change status will extend the period of authorized stay until a decision is issued, as long as the application was filed before the expiration of the underlying status and the alien had not worked without authorization. For example, a timely filed request for extension of B-2 status will continue the period of authorized stay until a decision is issued. If an applicant is subsequently petitioned for H-1B employment before a decision is issued on the B-2 extension, then status should be maintained. But conflicting decisions on this issue have become more common. It appears the BCIS has unleashed a zero tolerance attitude concerning the extended period of authorized stay for pending applications.

Recently, the BCIS has been cross-referencing work related petitions to determine if any simultaneous B-2 extension applications are pending. If pending applications are discovered then the BCIS requests detailed evidence about the intent of the applicant to remain in visitor status. Despite the longstanding 30-60 day intent rule, it becomes a catch-22 situation because the pending H-1B petition destroys the visitor status intent and allows the BCIS to deny the B-2 extension. Once the B-2 extension application is denied or withdrawn the applicant is considered “out of status” as of the date of expiration of the original B-2 status as indicated on the I-94 card. Because the H-1B was filed after the original B-2 status expired the petition is considered untimely and the request for change of status is usually denied. Although the person will not accrue “unlawful presence” until the day the H-1B change of status is denied, the person will be considered “out of status” from the expiration date of the original B-2. Frequently, the BCIS will approve a strong H-1B petition despite the change of status denial. Beneficiaries in this situation are required to return to their home country to request H-1B visa processing from the U.S. consulate.

Concurrent multiple filings were acceptable in the past, but the BCIS has developed an intolerance for these types of cases. If you are facing maintenance of status problems then visit our office for a free consultation with an experienced immigration attorney who can discuss possible options.