“Are you in Lawful Status when you apply for an Extension of Stay or Change of Status?”

Many aliens believe that filing an application for Extension of Stay (EOS) or Change of Status (COS) provides them with lawful status during the pendency of the adjudication of the application. For many immigrants this is important to avoid becoming unlawfully present in the United States which could result in a 3-year or 10-year bar if the immigrant leaves the US after remaining unlawfully. I addition, unlawful status may bar an application for EOS or COS.

The BCIS (formerly known as INS) has taken a position that an application for EOS or COS does NOT give an applicant lawful status at the expiration of their authorized stay. An alien’s authorized stay is determined by the time printed on their I-94 card. Upon the expiration of the stay authorized, the alien begins to accumulate unlawful presence in the US.

However, the timely filing of an EOS or COS can eliminate accrual of unlawful status. This anomaly is a result of the BCIS interpretation of the effect of a timely filed EOS or COS. A timely filed EOS or COS does NOT give the alien lawful status beyond the period authorized in their I-94 card. Instead it provides the alien with an additional period of stay authorized by the Attorney General of the United States. This distinction is extremely important to aliens who have filed an EOS or COS.

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An alien who is NOT in status can be removed from the United States and can also be barred from returning to the United States upon removal. An alien who accumulates more than 6 months of unlawful status, but less than 1 year will be barred from returning to the United States for 3 years. An alien who accumulates more than 1 year of unlawful status will be barred from returning to the United States for 10 years. Therefore accrual of unlawful status is very serious for aliens who wish to temporarily extend their stay, but also desire to travel abroad and return to the United States.

Filing of an EOS or COS does NOT provide the alien with lawful status and therefore it is possible for an alien to accrue unlawful status pending the adjudication of the EOS or COS. However, to avoid this harsh result on aliens who applied for EOS or COS in good faith and await the resolution of the application, the BCIS has interpreted the filing of the EOS or COS as a period of authorized stay by the Attorney General which tolls the accrual of unlawful status, until a determination is made on the EOS or COS.

However, there are some specific rules which must be followed to avoid accruing unlawful status for purposes of the bars. First, the filing of an application for EOS or COS must be filed before the expiration of the alien’s permitted period of stay as noted on their I-94 card. This date is the receipt date noted by the BCIS in the receipt notice retuned to the alien after filing. This is NOT the date the application is mailed to the BCIS. Therefore it is important to mail your application for EOS and COS much earlier than the expiration of your

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authorized stay to give the BCIS time to acknowledge receipt. Second, the filing of an EOS or COS must be made in good faith. If the BCIS determines that the filing was not made in good faith, they may deny the application and find that the alien has been out of status since the expiration of the I-94 period of stay.

In addition, an application filed after the period of stay authorized will be denied, and the alien will have begun accruing unlawful status from the date his I-94 expired. Therefore the untimely filing of an application for EOS or COS will NOT provide the alien with an additional period of authorized stay, and the alien will accrue unlawful status during the pendency of the application.

Therefore it is extremely important to file the application while you are in lawful status. Pursuant to C.F.R. 214.1 & 248.1, an EOS or COS may not be approved for an alien who failed to maintain the previously accorded status or whose status expired before the application or petition was filed, absent exigent circumstances which is at the discretion of the BCIS.

As an additional note, subsequent filing of a new EOS or COS while another petition is pending does not provide the alien with a bridge to extend status, once the initial status has expired. Since many petitioners believed that filing an application gave them status, they would file additional applications, while the previous one was pending to extend their lawful status even longer. This is not the case. Once the initial stay of the I-94 expires, the alien begin to accrue unlawful status, unless a EOS or COS was filed prior to the expiration.

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“Can you Apply for a Waiver of the Joint Filing Requirement to Remove Conditional Residence after Filing for Divorce or Annulment?”

Many aliens have filed for a waiver of the joint filing requirement to remove the 2-year conditional residence after obtaining a divorce on the basis that the marriage was entered into in good faith, and the reason for divorce was not their fault. Although many aliens have successfully obtained this waiver, the BCIS has issued a memorandum limiting the use of these waivers.

Within 3 months of the end of the two-year conditional period of residence the resident and their spouse must file a joint petition to have the condition removed. This requirement was made to avoid fraudulent marriages. However, a waiver exists for limited circumstances where the marriage has ended at no fault of the petitioning alien. However, the BCIS has taken a position that if the marriage is still valid, but a divorce or annulment proceeding is pending then the alien CANNOT seek a waiver.

Therefore if the applicant cannot convince their spouse to file a joint petition, they will lose their permanent resident status. Since they are in divorce proceedings, it is unlikely that the spouse will file a joint petition. This may affect many aliens who entered a marriage in good faith, but the spouse later decides to file for prior to the removal of the conditional status. However, if you obtain the divorce before the two-year conditional period is over, you can file for a waiver based on good faith.

May 2003 Priority Dates
1	01/Oct/1999	EB1	C
2A	15/Mar/1998	EB2	C
2B	01/Oct/1994	EB3	C
3	15/Mar/1997	Other	C
4	01/Jun/1991	4	C
		5	C