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

Angelica Rice • June 15, 2021

Click here to read this article in Portuguese

   Everyone knows that the government requires any and all applications filed to be submitted “on time”. 


   However, what exactly does “on time” or “timely filing” mean? This phrasing and terminology may be confusing to many applicants, as not all applications have a clear filing deadline, and not all filing circumstances are uniform.

   

   Oftentimes, there is a necessity to file more than one application for an applicant. Sometimes these applications will be filed at the same time, but other times, spontaneous circumstances occur that necessitate a second or subsequent filing of an additional application.      

     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.



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Angelica Rice

USCIS Changes H-1B Lottery to Wage-Based Selection

By Kris Quadros-Ragar • January 15, 2026
U.S. Citizenship and Immigration Services (USCIS) has announced a major change to the H-1B cap selection process. Under a final rule issued on December 29, 2025, USCIS will replace the long-standing random H-1B lottery with a wage-weighted selection system that favors higher-paid and more complex positions. The rule is scheduled to take effect on February 27, 2026 , just ahead of the fiscal year 2027 H-1B cap registration season, unless delayed by legal challenges. If implemented, USCIS is expected to release additional guidance explaining how employers must submit registrations under the revised process. This change marks one of the most significant reforms to the H-1B program in recent years. Up until 2025, all registrations were treated equally once the annual cap was reached. Under the new system, selection odds will be tied to wage levels based on the U.S. Department of Labor’s Occupational Employment and Wage Statistics data. All H-1B registrations will still be placed into a single selection pool, but registrations tied to higher wage levels will receive multiple entries into that pool, increasing their likelihood of selection. Lower wage levels will receive fewer entries, making selection less likely but not impossible. H-1B wage levels are not determined solely by salary. Each wage level reflects the complexity of the job, the level of responsibility involved, and the education and experience required . Entry-level positions involving routine duties and close supervision are generally classified at the lowest wage level, while positions requiring independent judgment, advanced skills, and significant responsibility fall into higher wage levels. The highest wage level is reserved for roles that involve expert knowledge, strategic decision-making, and substantial leadership or technical authority. USCIS is expected to closely scrutinize selected petitions to ensure that the wage level claimed during registration is supported by the job duties and salary offered in the petition. Any discrepancies between the registration and the petition may result in requests for evidence, denials, or enforcement action. With the elimination of the purely random lottery, employers should begin preparing early by carefully evaluating job descriptions, wage levels, and overall H-1B strategy. Accurate classification and thoughtful planning will be essential under this new wage-based selection system. If you are an employer considering H-1B sponsorship, or a foreign professional wondering whether your position may qualify under the new wage-based system, consulting with experienced immigration counsel is more important than ever. Santos Lloyd Law is actively advising clients on H-1B cap registrations and strategy under the new rules. To discuss your options or determine whether you may qualify, contact our office to schedule a consultation.

Increase in issuance of EB-1A RFEs

By April Perez • January 9, 2026
During the recent administration there has been an increase in issuance of Requests for Evidence for EB-1A petitions for those of Extraordinary Ability. A Request for Evidence is a request that is made by USCIS that should explain how the evidence is deficient in proving the criteria argued and what additional evidence needs to be provided by the applicant to meet the criteria. EB-1A petitions are already normally subject to higher scrutiny because their approval is the first step needed to apply for Lawful Permanent Residence or a green card. USCIS normally requires not just evidence but that the evidence be provided with context and information to show why it matters in a particular field. For example, if you were providing evidence of your membership in an organization that requires outstanding achievements of its members, just providing evidence of the membership is not enough. You must explain what that membership is and provide background information on the organization granting the membership. You also need to provide evidence on the criteria that is used to select the members, information on those who select the members to show that they are recognized experts, other documentation such as articles about the membership organization to show its importance, and any other relevant evidence and background information to show that the criteria is met. A request for evidence being issued prior to the current administration was not uncommon, but in the current climate it is more surprising to not receive a request for evidence for this type of case. It is important to remember that a request for evidence is not a denial. Depending on the validity of the information in the request and the substance some Requests for Evidence can be overcome, and the case be approved. It is important to carefully review the request and note if there are any errors in the content and application of the regulations by USCIS. If you have an attorney, you should work with them and make sure that you provide any evidence you think may be helpful. Although there is a deadline by which a response must be submitted, attention to detail and patience will go a long way when dealing with having to respond to a request for evidence.  If you believe you may qualify for this type of visa, please feel free to contact our office.
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