What Happens when an Applicant Files an Extension of Status and Subsequent Applications?

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     For example, an applicant is here in the United States on a B-2 visa. These visas have a certain expiration date, and in order to extend your status you must file an application to extend status (Form I-539) before that expiration date. Let's say that the applicant “timely” (before the expiration date of his current visa and I-94) files his I-539, application for extension of status. However, a month or so later, after his B-2 visa and I-94 have expired and while the extension application is still pending, he has a new opportunity and decides to file an I-129 petition, for an E-2 visa. Additionally, he has to file an additional I-539, application to change status, because he will now be changing from his current B-2 status, to his new E-2 status, once the E-2 visa is approved. 

*Note: the application for an extension of status (EOS) and change of status (COS) are the same form, I-539* 

     Now the hypothetical applicant has three (3) applications pending with USCIS, two of which were filed after his current status expired. Will USCIS accept these applications, as they were not “timely” filed? 

     The answer is, a pending application does not confer lawful immigration status on an applicant. However, due to the pending I-539 application that was timely filed before the expiration of the I-94, the applicant is in an “authorized period of stay” and is able to remain in the US until their application has been adjudicated. 

*Note the difference between “lawful status” and “authorized period of stay”, one only obtains “lawful status” once they have been granted an immigration benefit (aka. Once their application has been approved)*

     An applicant may file an additional application after expiration of his or her nonimmigrant status while the applicant’s timely-filed EOS or COS application is pending. In such cases, the officer should defer adjudication of the additional application until USCIS adjudicates the EOS or COS application. If USCIS ultimately approves the EOS or COS application, then the applicant is considered to be in lawful immigration status on the date the additional application is filed. If USCIS denies the EOS or COS application, then the applicant is generally considered to be in unlawful immigration status as of the expiration of the applicant’s current nonimmigrant status and likewise on the date the adjustment application is filed. 

     Basically, USCIS will adjudicate the extension application first, and hold off on adjudicating the subsequent applications, as they were not “timely filed”. It won’t be until a decision on the extension application is made, that USCIS will determine if it can move forward with adjudicating the subsequent applications. 

This blog is not intended to be legal advice and nothing here should be construed as establishing an attorney client relationship. Please schedule a consultation with an immigration attorney before acting on any information read here.



Angelica Rice