This section of the FAQ covers questions that apply broadly to foreigners regardless of their particular class of admission.
A visa is issued to a foreign national by the State Department at a consular post outside the United States. It should be presented when seeking admission to the United States at a port of entry. Most foreign nationals must have a valid visa in order to enter the United States [1][2].
Status refers to the "category" that an alien who is present in the United States falls into. The word "status" in and of itself does not appear to be specifically defined anywhere in the law. Instead, the concept of "status" is referenced in various contexts in US immigration law:
- When an alien is admitted to the United States, they are classified as a lawful permanent resident [3] or within one of the lawful nonimmigrant classes described in [4] or under certain other provisions of the law. The alien therefore acquires a status as a consequence of their lawful admission. Nonimmigrants may or may not qualify for work authorization, depending on their status.
- Certain statuses are recognized by federal regulations as lawful immigration status [5]. A lawful nonimmigrant status expires at the end of the period of authorized stay [5]. Most aliens in lawful nonimmigrant status must comply with certain conditions in order to maintain that status [6][7][8].
- Failure to maintain lawful status may have consequences including removal from the United States [9], ineligibility for adjustment of status to lawful permanent resident [10][11], ineligibility for extension of nonimmigrant status [12], ineligibility for change of nonimmigrant classification [13][14], and ineligibility for future admission to the United States [15]. The law recognizes certain exceptions to the above, which we won't get into in this answer.
An expired visa is not valid for admission to the United States [1][16] but under certain conditions, a visa may be considered to be automatically extended beyond its original expiration date. The validity period of a visa does not limit the period of authorized stay [16]. Thus, the expiration of a visa, in and of itself, does not mean a nonimmigrant is required to leave the United States, but if the alien does leave the United States, they must obtain a new visa from a consular post in order to re-enter the United States, unless they can benefit from the automatic revalidation provisions. A visa also does not constitute proof of alien registration [17].
Nonimmigrants who arrive in the United States by air or sea and who are granted admission are issued an electronic I-94 form, which can be retrieved from CBP's website. Those who arrive by land may be issued a paper I-94. In either case, the "admit until" date on the I-94 indicates the last day of the nonimmigrant's period of authorized stay [18]. If you are granted extension or change of status by USCIS, your approval notice will indicate the new period of authorized stay [59][60].
Some nonimmigrants, most commonly F nonimmigrants (international students) and J nonimmigrants (exchange visitors) receive an I-94 whose end date is D/S
(duration of status). These individuals are not given a specific date to leave by DHS directly, but are instead authorized to remain in the US until the expiration of the program they were admitted for [82]. (Extension of stay for F and J nonimmigrants is discussed in an answer below.)
There are two main categories of nonimmigrant visitors who do not receive an I-94: Canadian visitors by land, and Mexicans with a Border Crossing Card exempt from the passport requirement. A Canadian visitor by land will only be issued an I-94 if they apply for one and pay the required fee. If a Canadian visitor is not issued an I-94, they must leave by the date CBP stamps on their passport. If no date is explicitly given, they must leave within 6 months of their admission [80]. A Mexican citizen who enters the US using a Border Crossing Card, without presenting a passport, is not issued an I-94 and can generally stay in the US for up to 30 days per visit and is geographically restricted to a region near the US–Mexico border [81]. They must present a passport and obtain an I-94 if they wish to stay for longer or if they need to travel outside the designated region.
Yes [88]. However, if the reason why you were paroled is because of your pending Adjustment of Status application, then the expiration date on the I-94 does not necessarily mean that you have to leave the United States by that date. If your I-94 expires and your Adjustment of Status is still pending, then you can stay in the United States. See below.
CBP does not use Form I-94 to record lawful permanent resident travel [89], though they do still maintain entry/exit records for LPRs. LPRs are responsible for recording their own entry/exit dates, although it's possible to get this information from CBP by filing a Freedom of Information Act request. USCIS normally does not issue an I-94 when a person adjusts status to LPR. There are some limited situations in which an LPR can receive an I-94 from USCIS [87]. A lawful permanent resident should use their green card or other Form I-551 as evidence of lawful status in the United States.
Yes. An I-94 is issued when a person is admitted to the United States as as refugee or when a person's asylum application is granted. Such I-94s may be used as evidence that the bearer has the right to work in the United States [90].
If you were issued an electronic I-94, you can always use the CBP website to see your most recent I-94 record. Even if you were issued a paper I-94, it's possible that an electronic version still exists. But there are still cases where you will have only a paper I-94. For example, if you were granted an extension of stay by USCIS, then USCIS would have issued a paper I-94 with your approval notice. The information on that I-94 is not available on the CBP website, since CBP did not create the record of admission. [89]
One obvious method to get a new I-94 is to leave and re-enter the United States. You may have been planning on leaving anyway, in which case there is no requirement to re-enter the United States (obviously) but care should be taken to ensure that your departure is recorded. If you leave the US by air, then DHS will record your departure electronically. But if you leave by land, then you should request to have your passport stamped by Canada or Mexico so that, if you ever travel to the US in the future and are questioned about whether you overstayed in the US, you will have proof that you did not overstay.
If you want to stay in the US, an obvious question arises: how do you know how long you're allowed to remain in the US, if you've lost your I-94? If there is some doubt about this, then it is usually better to leave the US to avoid a possible overstay. If this is somehow not a concern for you, but you still need an I-94 in order to present to someone else as proof of lawful status, then you can file Form I-102 with USCIS. You should be aware that this is often more expensive and time-consuming than leaving and re-entering the United States.
By law, aliens are required to carry a certificate of alien registration
[83]. US citizens and nationals are not legally obligated to carry proof of their citizenship or nationality.
Federal regulations [17] define the set of forms that aliens may carry in order to satisfy the registration requirement. For most aliens, this will be one of:
- A green card or temporary I-551 stamp, or
- The alien's current Form I-94, if unexpired. An I-94 printed by the alien from the CBP website after admission is considered valid for this purpose [84][85], or
- A passport with an unexpired admission stamp, or
- An Employment Authorization Document.
Separately, however, all persons present in the US might wonder what documentation they should carry with them in order to avoid unnecessary detention based on a suspicion of being unlawfully present. Even US citizens are sometimes arrested by ICE; for aliens, the concern is obviously greater as one may be coerced into accepting deportation (which carries long-lasting immigration consequences) or one may be placed into removal proceedings despite USCIS discretion to ordinarily not remove certain types of aliens.
To avoid this, one may wish to carry subjectively convincing proof of both identity and legal status or authorized stay, for example:
- For US citizens or nationals: a US passport or wallet-sized US passport card;
- For lawful permanent residents: an unexpired green card (remember to renew it when it is close to expiration);
- For lawful nonimmigrants or parolees: an unexpired foreign passport together with an unexpired admission stamp or I-94 hardcopy, and, if relevant, a copy of the petition or other document authorizing admission in their current status;
- For individuals who were lawfully admitted as nonimmigrants or paroled but whose status has expired pending a COS, EOS, or AOS (see below): an unexpired foreign passport together with the expired admission stamp or I-94 hardcopy; a copy of the petition authorizing said admission if relevant; and a copy of the receipt notice for the pending application;
- For refugees or aliens granted asylum: an unexpired US refugee travel document, an unexpired EAD, or an unexpired foreign passport or other official travel document together with I-94 hardcopy or approval notice.
As a nonimmigrant visa is not proof of legal status, nonimmigrants should remember that a visa is not sufficient for the purposes described above. An EAD also may not be sufficient as it does not necessarily provide an immigration officer with a straightforward way to verify the underlying basis: for example, if you have a C09 EAD (adjustment of status pending) then a CBP officer may not be able to immediately verify whether your I-485 is still pending. See also link 1, link 2.
All lawful permanent residents are authorized to work in the US for as long as that status is not terminated [19]. Some nonimmigrants are eligible for an Employment Authorization Document (EAD). EAD holders must be in possession of the physical card in order to satisfy I-9 requirements [20], and their employment authorization terminates when the card expires [21]. Finally, some nonimmigrant statuses authorize a foreign national to work only for their sponsoring employer(s). These are informally referred to as "work visas".
The most general nonimmigrant classifications an employer can sponsor you for if they seek to employ you on a full-time or part-time basis are H-1B, L-1, and O-1. Each of these has drawbacks, which is why obtaining work authorization in the US is considered difficult in general compared to other countries.
- H-1B, if you will be employed in a "specialty occupation" [22]. Most "engineering" roles qualify as specialty occupations because they require "theoretical and practical application of a body of highly specialized knowledge" and "attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States." [23] The main disadvantage of the H-1B visa/status is that the quota is much lower than the number of people who want to apply.
- L-1, for intracompany transferees who have worked outside the US for at least 1 year [24]. The main disadvantage of L-1 status is that it's impossible to change employers while in L-1 status.
- O-1, for aliens of extraordinary ability. [25] The main disadvantage of the O-1 visa/status is that very few people can demonstrate that they are "extraordinary" enough to qualify.
There are also some treaties the United States with other countries that allow those countries' citizens to work for sponsoring employers in the US. Generally speaking, taking advantage of one of these statuses is a much easier way to obtain work authorization in the US than trying to apply for H-1B, L-1, or O-1 status.
- Canadian and Mexican professionals in certain professions set out in NAFTA are eligible for TN status [26][27]. Note that Canadians do not need visas, but Mexicans do.
- Australians in specialty occupations are eligible for E-3 visas/status. [28]
- Chileans and Singaporeans are eligible for a variant of H-1B status, known as H-1B1, with a special quota that applies only to their respective countries [29][30]. They are therefore unaffected by the large numbers of Indian and Chinese nationals applying for the limited number of H-1B visas.
If you're seeking to do an internship in the US, you don't need an H, L, or O visa. Instead, your employer will invite you to visit the US for an exchange program (often through a third-party organization such as Cultural Vistas), the purpose of which is for you to receive training at said employer. You will need to obtain J-1 status, which is not numerically limited. Some J-1 interns will be subject to a 2-year home residency requirement following the completion of their visit.
In most cases, yes. If you are in the US in one nonimmigrant status and you want a different nonimmigrant status, one method is to leave the US, apply for a new visa for the status you want to obtain, then re-enter the US. However, in most cases, it's also possible to apply for USCIS to change your status while you are still in the US, provided that your status is still valid at the time of filing [51].
If you want to change to E principal, H-1, H-2, H-3, L-1, O-1, O-2, P-1, P-2, P-3, Q-1, R-1, or TN status, then your employer must file Form I-129 with supporting evidence that you are entitled to that classification [47][49]. If you want to change to A, B, E dependent, F, G, H-4, I, J, L-2, M, O-3, P-4, R-2, or TD status, you must file Form I-539 with supporting evidence that you are entitled to that classification [34][48]. You cannot apply to change to C or K status [50].
A nonimmigrant with C, D, K, or S status, or who was admitted under the Visa Waiver Program, is not eligible for a change of status, unless changing to T or U status [52].
A J nonimmigrant who is subject to the home residency requirement, and who has neither fulfilled the requirement nor had it waived, is not eligible for a change of status, unless changing to A, G, T, or U status [51][52] and it appears that USCIS interprets this prohibition to include former J nonimmigrants as well [34]. For example, a former J exchange visitor who has not yet fulfilled the home residency requirement is allowed to leave and re-enter the US in B or F status, but could not use Form I-539 to switch from B to F status.
If a change of status is approved, USCIS will issue a Form I-797A whose tear-off portion contains a new I-94, indicating the alien's new nonimmigrant status and end date of that new status. [53][54] If the change of status is denied, the alien's status does not change.
A nonimmigrant generally must leave the US on or before the expiration date of their I-94. It is often possible to use the same visa, or a new visa in the same category, to return to the US in the same status. However, in many cases, it's also possible to apply for USCIS to grant you an extension while you are still in the US, provided that your status is still valid at the time of filing [58].
If an alien has E principal, H-1, H-2, H-3, L-1, O-1, O-2, P-1, P-2, P-3, Q-1, R-1, or TN status, their employer must file Form I-129 in order to extend the alien's stay [49][55]. The employer must submit evidence that the alien will continue to perform the employment that qualifies them for their status.
If an alien has A, B, E dependent, G, H-4, K-3, K-4, L-2, M, O-3, P-4, R-2, T, TD, or U status, they must file Form I-539 in order to obtain an extension [34][56]. Form I-539 must be accompanied by evidence that the alien will continue to qualify for their status.
An alien admitted under the Visa Waiver Program, or an alien with C, D, K-1, or K-2 status, may not extend their stay [57]. Aliens from Visa Waiver Program countries who need to stay in the US for longer than the period allowed by the Visa Waiver Program should apply for B visas.
An international student with F status generally is admitted for duration of status; their I-94 does not show a specific end date. An alien who is maintaining F status and who must remain beyond the end date of their I-20 in order to complete their academic program must apply to their DSO for an extension, rather than submitting Form I-539. Upon approval, the DSO will issue a new I-20 [61]. An alien in F status who wishes to remain in the US to pursue post-completion optional practical training (OPT) must file Form I-765 [64]. If Form I-765 is approved, the alien may maintain F status without having to file Form I-539 [63]. Form I-539 must be used by students who failed to maintain F status and are applying for a discretionary reinstatement [34][62].
An exchange visitor with J status is usually admitted for duration of status [67], but if they wish to continue their program beyond the end date on their DS-2019, they must ask their sponsor to apply for an extension [65][66]. If the extension is approved, the alien will receive a new DS-2019 [66].
If an extension of status on Form I-129 or Form I-539 is approved, USCIS will issue a Form I-797A whose tear-off portion contains a new I-94, indicating the alien's new approved period of stay [59][60]. If the extension is denied, the alien's current I-94 is unaffected and they must still leave the US before its expiration date.
See the green card FAQ.
Dual intent occurs when an alien applying for a nonimmigrant visa or nonimmigrant status has two intents: an intent to live in the US temporarily for the purposes of their nonimmigrant classification, and an intent to live in the US permanently (also known as immigrant intent). This concept is significant because some nonimmigrant statuses allow dual intent, some explicitly disallow dual intent, and others exist in a grey area.
Among the statuses that explicitly disallow dual intent are B (visitor for business or pleasure), F (student), and J (exchange visitor). In order to be classified as a B, F, or J nonimmigrant, an alien must have "a residence in a foreign country which he has no intention of abandoning" [31]. Furthermore, according to INA 214(b), the alien has the burden of proof and must affirmatively establish that they do in fact have a residence abroad they have no intention of abandoning, both when they apply for the B, F, or J visa, and when they are applying for admission [32]. In addition, the consular officer may be in possession of evidence that the B, F, or J visa applicant is likely to be an intending immigrant, such as: inconsistencies in the applicant's explanation of their proposed activities in the US, previous overstays, or an ongoing application for permanent immigration status. Consequently, 214(b) visa denials, in which the consular officer refuses to issue a B, F, or J visa on the grounds that the alien has failed to meet this burden of proof, are very common.
On the other hand, the H-1B, L, and V statuses have no requirement of a residence abroad [31], and are explicitly exempted from INA 214(b) [32]. They are considered to be statuses that explicitly allow dual intent, so that one cannot, for example, be denied an H-1B visa on the basis of an intention to immigrate. Similarly, as K nonimmigrants are expected to apply for adjustment of status to that of permanent resident, the K status also allows dual intent.
Other nonimmigrant statuses exist in a grey area, where there is no explicit requirement of a residence abroad, yet INA 214(b) denials are still possible. Some of these statuses have been afforded partial
allowance of dual intent via regulations or policy memos. We will discuss this issue more on the respective sections of the FAQ.
Applying for a green card while in a status that does not allow dual intent is considered risky. But contrary to popular belief, doing so is not illegal, does not constitute a status violation, and is not among the grounds for deportation or revocation of an approved nonimmigrant petition. Instead, the risk is that the applicant's attempt to extend their nonimmigrant status, or be re-admitted to the US as a nonimmigrant after a visit abroad, may be denied. The ongoing green card application can be regarded as evidence of immigrant intent, resulting in denial of nonimmigrant classification. For this reason, it's considered "safer" to apply for a green card while in a status that allows dual intent. However, there are exceptions to this rule, which we'll describe in other parts of the FAQ.
If you are an employment-based immigrant, you most likely qualify to bring your spouse and unmarried children under 21 with you when you immigrate. The same is also true for some (but not all) other types of immigrants. See the answer here for the details. Derivative immigrants become lawful permanent residents in their own right; once they are granted lawful permanent resident status, maintaining that status depends on their own actions, not yours.
If your family members are not already US citizens or lawful permanent residents, then they may be eligible to receive a dependent status based on your nonimmigrant status. For example, an H-1B worker's spouse and unmarried children under 21 would normally qualify for a status known as "H-4", although they also have the option of seeking admission or change of status to any other status that they may be qualified for. An L-1 worker's spouse and unmarried children under 21 would normally qualify for L-2 status. There are some provisos: the dependents must not be inadmissible, and there are some rules for which children really count as "children" [33]. We won't get into these details here.
In general, each dependent needs their own passport and visa in order to be admitted to the US: if you have an H-1B visa then your dependents must each apply for an H-4 visa if they want to be admitted in H-4 status. If you are visa-exempt (for example, because you're travelling on a Canadian passport) but your dependent is not visa-exempt, they still need a visa even though you don't. If you are not visa-exempt, but your dependent is, they still don't need a visa, even though you do.
If you are changing status based on an I-129 petition your employer is filing on your behalf (for example, to H-1B or L-1 status) then your dependents, if they are in the US, must file separately to the corresponding nonimmigrant status. The form used for this is Form I-539. On the other hand, if you are filing to change your own status, for example to F-1, then you and your dependents could be included on a single Form I-539 application to simultaneously change your status to F-1 and their status to F-2 [34][35].
If your family members do not qualify to accompany you to the US in a dependent nonimmigrant status, then they can apply for B-2 visas instead [45] or visit under the terms of the Visa Waiver Program. However, this does not provide a means for said family members to live in the US for long periods of time. For example, if you are an H-1B worker, your parents may be eligible for B-2 status to visit you in the US, but while you may spend 3 years working for your employer in the US, your parents are unlikely to be allowed to live in the US for 3 years in B-2 status.
Employment of aliens in the United States is heavily restricted by INA 274a (8 USC §1324a) and 8 CFR §274. In the case of nonimmigrant dependents, some are permitted to work as soon as they are admitted to the US, while some may need to be issued an EAD by USCIS prior to taking up employment in the US. The conditions for EAD issuance depend on the specific classification. See the FAQ section about the corresponding principal classifications for more information (for example the H-1B FAQ).
Most types of nonimmigrant dependents in the US are permitted to study, provided that they maintain their status as dependents (which, generally, simply means that they are in the US for the primary purpose of accompanying the principal nonimmigrant, and they file to extend their status when necessary).
One point of view is that because there is no specific law that prohibits non-citizens from studying when they are present in the United States (with the exception of B status [43][44], which is not a dependent status in any case), it means that study is always permitted unless specifically prohibited, unlike work, which is prohibited unless specifically allowed (see the previous FAQ entry). A different point of view is that ICE has exercised delegated authority under INA 214(a)(1) (8 USC §1184(a)(1)) to determine that study is prohibited by default for nonimmigrants, with various regulations that explicitly permit study for most dependent classifications [92].
At any rate, most dependent nonimmigrants are allowed to study in the US, including H-4 and L-2 dependents [92]. The main exceptions, according to ICE, are that a F-2 or M-2 spouse is restricted from pursuing full-time study [91][92]. ICE also seems to take the position that dependents of I nonimmigrants (foreign media representatives) are not permitted to study because there is no specific regulation authorizing them to do so. Whether ICE's determination is actually legally binding in these cases is an untested legal question.
Note that in all cases, the Supreme Court ruling in Plyler v. Doe [46] implies that school-aged alien children are entitled to receive K-12 education on the same terms as US citizen children. This applies even to children who are not lawfully present in the United States.
Where INA 101(a)(15) authorizes the admission of dependent nonimmigrants [36], it specifies that the dependents must be "accompanying or following to join". This means that when the principal is admitted, their dependents may either be admitted in the corresponding dependent status at the same time, or they can be admitted after the principal has already been admitted (not before).
TODO: Can dependents be admitted while the principal is temporarily absent?
TODO: Can dependents stay in the US if the principal leaves the US temporarily?
If you are working in the US in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN status and your employment ends, then you may be eligible for a 60-day grace period, which starts the day after the last day of your employment. You remain in status until either the grace period expires or your I-94 expires (whichever is earlier). [37] The grace period for F-1 OPT trainees is different; it will be discussed elsewhere.
During the grace period, since you are considered to still be in status, you remain eligible for extension of status or change of status [38], but you generally can't work during the grace period, with some exceptions [37]. For example:
- If you are in H-1B status and you enter the grace period, a new employer may file for extension of status during the grace period so you can be an H-1B employee for them. Due to H-1B portability, you can start working for the new employer as soon as the new petition is accepted for processing by USCIS.
- If you are in L-1 status and you enter the grace period, your options are more limited. But for the sake of demonstration, let's say you find a new employer that's willing to sponsor you for O-1 status. Then, they can file for a change of status during the grace period, but you cannot work until the petition is approved. (TODO: Discuss what happens if the grace period expires while the petition is pending.)
You can only get a grace period "once per authorized validity period". In practice this is not much of a restriction, because every time a petition by a new employer gets approved, you receive a new authorized validity period. For example, suppose:
- You are admitted in H-1B status on Oct 3, 2019 with status valid until Oct 13, 2022.
- You are fired on Jul 18, 2020.
- A new employer files an H-1B petition for you on Aug 25, 2020 and you start working for them on receipt.
- The new petition is approved with a validity period until Aug 25, 2023.
- On Jan 22, 2022, you are fired again.
In this situation, you would be eligible for a second grace period, since you were in an authorized validity period that began on Aug 25, 2020. The fact that this is within the original validity period from Oct 3, 2019 to Oct 3, 2022 is not relevant; the two periods overlap, but you used a grace period during the first one and now you are using a grace period within the second one.
On the other hand, suppose the situation were as follows:
- You are admitted in H-1B status on Oct 3, 2019 with status valid until Oct 13, 2022.
- You are fired on Jul 18, 2020.
- A new employer files an H-1B petition for you on Aug 25, 2020 and you start working for them on receipt.
- On Mar 12, 2021, the new H-1B petition is denied.
Upon the denial of the new petition, you would have to immediately stop working for the new employer. You already used your grace period for the authorized validity period starting on Oct 3, 2019, and although, during the period from Jul 19, 2020 to Mar 12, 2021, you were in an authorized period of stay, you did not receive a second authorized validity period, since an authorized validity period can only be established by the approval of a petition. Thus, in this case, you would not receive a second grace period. You would have to leave the United States immediately.
Note that the regulations state that "DHS may eliminate or shorten this 60-day period as a matter of discretion." [37] Thus, if you attempt to abuse the grace period provision, USCIS may simply decide to act as if the grace period has already expired. For example, if USCIS receives a petition to extend or change your status, and you are in a grace period, and USCIS decides that you should not receive that grace period, they will deny your petition and you will have to leave the US immediately.
It is possible that the grace period may expire while you are waiting for a change of status or extension of stay to be approved. Since the grace period is a period of valid nonimmigrant status, that means a change of status or extension of stay filed during the grace period is timely filed. Consequently, if the grace period expires after the application was already filed, this generally will not prevent it from being approved.
What happens if my nonimmigrant status expires while my Change of Status, Extension of Stay, or Adjustment of Status application is pending?
The summary answer that most attorneys would agree with is:
Provided that the application was non-frivolous and properly filed while your status was still valid, and you do not engage in unauthorized employment, you can stay in the US as long as the application is pending. However, if it is possible for you to maintain status while the application is pending, it is advisable to do so in order to ensure you still have a valid status if the application is denied.
See for example (link 1) (link 2) (link 3) (link 4) (link 5) (link 6) (link 7).
The full answer is much more complicated. During the period after an alien's nonimmigrant status expires but while the COS, EOS, or AOS application is still pending, USCIS considers the alien to be in a period of authorized stay [68][69] and according to USCIS policy, the alien does not accrue unlawful presence provided that all the conditions above are met [68][70]. However, USCIS admits that such an alien is still technically removable [71][72][73] but, as a matter of discretion
, DHS may defer removal proceedings until a decision is made on the application. In the vast majority of cases, there are no negative factors, so as a matter of discretion, such individuals are not actually placed in removal proceedings during the pendency of their applications. This is the reason why immigration lawyers advise their clients that they can stay in the US.
Interestingly, USCIS policy is more generous than what the Immigration and Nationality Act actually guarantees. According to the INA, the accrual of unlawful presence is only guaranteed to be tolled for 120 days during the pendency of a COS or EOS (not AOS); for example, if an alien remained in the US for 150 days after the expiration of their status and then left, but had a pending COS or EOS for that whole time, then the INA says that they would only accrue 30 days of unlawful presence [74]; if an alien remained in the US for 150 days after the expiration of their status and then left, but had a pending AOS for that whole time, the INA says they would accrue the full 150 days of unlawful presence.
The State Department appears to simply defer to this USCIS policy, referring to it as a decision made by DHS [75]. CBP also appears to follow the same policy, referring to it as a decision made by the Service
(i.e., the former INS). Thus, in general, lawyers feel safe advising their clients that they won't suffer the consequences of accruing unlawful presence as long as they met the requirements described in the summary and they do not remain in the US after any denial of the COS, EOS, or AOS application.
It is important to note that in the period after nonimmigrant status has expired but before a COS, EOS, or AOS has been granted, the alien does not have a nonimmigrant status and therefore, in most cases, is not entitled to pursue activities authorized by either the former or prospective status [73]. For example, if an alien's H-1B status has expired but they have a pending change of status to O-1, they cannot work during this period because neither their old nor new statuses are valid.
However, as a special exception, a principal alien with A-3, E, G-5, H, I, J, L, O, P, R, or TN status, whose employer has made a timely non-frivolous filing to extend their status in order to continue the same employment, is permitted to continue said employment for up to 240 days after their employment authorization expires [77]. If the extension is denied after the previous employment authorization expires but before 240 days have passed, employment authorization ceases and the alien must leave the US. If the extension is still pending 240 days after the previous employment authorization expires, employment authorization ceases but the alien is still permitted to remain in the US while the extension is pending.
What happens if an application for Change of Status, Extension of Stay, or Adjustment of Status is denied?
If you are still maintaining your current status at the time when your COS, EOS, or AOS application is denied, then your current status is unaffected. You are still lawfully present in the US, and could potentially correct any errors and file a second time before your status expires. However, if you no longer have valid status at the time of denial, then regardless of why USCIS denied the application, you may be placed in removal proceedings [79]. This is why lawyers recommend trying to maintain nonimmigrant status during the pendency of a COS, EOS, or AOS application if possible. However, it should be noted that there are some situations where this is impossible (for example, K-1 status only lasts for 90 days, so it is almost guaranteed that it will expire while the marriage-based adjustment of status is pending). For this reason, it's important to try as hard as possible to make sure all the paperwork is in order when submitting the application. Furthermore, if USCIS signals that they are about to issue a denial—through issuance of a Request for Evidence or Notice of Intent to Deny and you know you will not be able to prove you are qualified for the status you are seeking—then it is best to leave while the application is still technically pending, so you will not be in the US when the actual denial occurs.
If the alien does not have valid status upon the denial of their COS, EOS, or AOS application, but the conditions described in the previous answer are met—the application was non-frivolous and timely filed, and the alien did not engage in any unauthorized employment—then USCIS considers them to have been in an authorized period of stay
while the application was pending. Therefore, the alien only begins to accrue unlawful presence starting from after the denial [68][78]. If the alien managed to leave the US before the denial finally occurred, they would not have accrued any unlawful presence.
However, again, you may only qualify for this protection if a COS or EOS application was timely filed and you did not engage in unauthorized employment either before or during the pendency of the application. If the application is denied because your previous status was not valid at the time of filing, or because you engaged or unauthorized employment, then USCIS will count unlawful presence starting from when your previous status expired, continuing to accrue while the application was pending [78]. As always, departing from the United States stops the accrual of unlawful presence but may potentially trigger a bar on returning to the US. It is therefore extremely important to avoid unauthorized employment in order to protect oneself from the consequences of unlawful presence.
The rules for AOS applications are more generous. Even if the AOS is denied due to unauthorized employment, the fact that USCIS received and accepted the application for processing is enough to prevent any accrual of unlawful presence while it is pending. If the AOS is eventually denied, and the alien does not have valid status, then at that point, accrual of unlawful presence will begin. If the alien's status had already expired before filing the AOS, then when USCIS receives and accepts the AOS filing for processing, the unlawful presence clock stops. If the AOS is eventually denied, unlawful presence starts accruing again after the denial [68].
Note that an alien whose AOS application has been denied may face immigration consequences even if they do not accrue any unlawful presence: due to the fact that they have revealed an intent to live in the US permanently, they may not be able to qualify for most nonimmigrant visas in the near future.
In most cases where a change of status petition is filed on Form I-539 or Form I-129, if the petition is pending at the time when you leave the US, then USCIS will deny the change of status. See for example [41]. For example, this would apply if you are changing from F-1 to H-1B status (Form I-129) or from H-1B status to H-4 status (Form I-539), or from H-4 to L-2 status. Consequently USCIS will eventually render a denial on the petition.
Thus, if you absolutely must travel while a change of status petition is pending, then be prepared to apply for consular processing when you are abroad: that is, bring with you the appropriate documents in order to apply for a visa for your desired classification at a consular post. Once the visa is issued, you can return to the US in the new status.
In the case of I-129 change of status petitions, note that USCIS applies a two-step adjudication process (see here for references) in which they first decide whether or not to authorize you to work for the sponsoring employer for a period of time, then decide whether or not to approve your status change. If you travel while this petition is pending, then the first step can still be approved on the merits, but the second step will be denied; you will receive an I-797B instead of an I-797A (see [42]). The I-797B must be used to apply for a visa.
In most cases where an extension of stay is filed on Form I-539 or Form I-129, the petition will continue to be processed despite your departure from the US. See for example [41]. This includes, for example, extensions of H-4 or L-2 status, extensions of H-1B status with the same employer, and H-1B change of employer petitions. (When you change employers while retaining H-1B status, this is considered an "extension".) See the H-1B page for more information about travelling with a pending H-1B transfer.
Note that the "Last Action Rule" will apply to such cases [42]. According to this rule, the latest issued I-94 controls your status. For example, if your extension of stay petition is approved while you are outside the US, then USCIS will issue a new I-94, but when you subsequently return to the US, CBP will issue another I-94; the latter is later in time, so when it is issued, the former will be void. Or, alternatively, if you travel while your extension petition is pending, then return to the US while it is still pending, and the petition is eventually approved, the I-94 issued by USCIS will control, and will void the previous I-94 issued by CBP.
If you've read the preceding two sections, you might be asking this question. Because USCIS has not published a description of the official policy regarding travel with pending Form I-129 or I-539, we can only speculate.
You might be aware of the fact that, in most cases, the US government does not like it when aliens seek admission in one status with the actual intent of obtaining another status. For example, an alien should not attempt to enter the US with an existing B-2 visa if their plan is that immediately after entering the US, they will file to change to F-1 status. If the purpose of your trip is to study, then you are supposed to get an F-1 visa, and present the F-1 visa at the port of entry. This ensures that the State Department and CBP are appraised of the alien's intentions and are able to make the appropriate decision based on the evidence provided.
Given this fact, it is understandable that a change of status petition would be denied when the alien leaves the US. Suppose you are in F-1 status and you have filed to change to H-1B status. Then, if USCIS did not deny the pending petition upon your departure, it would mean that upon your return to the US, you would present the F-1 visa and be admitted in F-1 status with the knowledge that you would soon be changed to H-1B status based on your still-pending petition. This is contrary to policy objectives, so USCIS deals with it by ensuring that the petition will be denied. On the other hand, if it were an extension petition that did not change status, there would be no compelling policy objective necessitating the denial of the petition. Such denial would only result in additional workload for the government as the alien would need to go through consular processing or re-submit the extension petition.
[1] INA 212(a)(7) (8 USC §1182(a)(7))
[2] 9 FAM 102
[3] INA 101(a)(20) (8 USC §1101(a)(20))
[4] INA 101(a)(15) (8 USC §1101(a)(15))
[5] 8 CFR §245.1(d)(1)
[6] 8 CFR §214.1
[7] 8 CFR §214.2
[8] 7 USCIS-PM B.3
[9] INA 237(a)(1)(C)(i) (8 USC §1227(a)(1)(C)(i))
[10] INA 245(c) (8 USC §1255(c))
[11] 8 CFR §245.1(b)
[12] 8 CFR §214.1(c)(4)
[13] INA 248(a) (8 USC §1258(a))
[14] 8 CFR §248.1(a)
[15] INA 212(a)(9)(B)(i) (8 USC §1182(a)(9)(B)(i))
[16] 22 CFR §41.112
[17] 8 CFR §264.1
[18] https://www.cbp.gov/travel/international-visitors/i-94
[19] 8 CFR §274a.12(a)(1)
[20] 8 CFR §274a.2(b)(1)(v)(A)(4)
[21] 8 CFR §274a.14(a)(1)(i)
[22] INA 101(a)(15)(H)(i)(b) (8 USC §1101(a)(15)(H)(i)(b))
[23] INA 214(i)(1) (8 USC §1184(i)(1))
[24] INA 101(a)(15)(L) (8 USC §1101(a)(15)(L))
[25] INA 101(a)(15)(O) (8 USC §1101(a)(15)(O))
[26] INA 214(e)(2) (8 USC §1184(e)(2))
[27] 8 CFR §214.6
[28] INA 101(a)(15)(E)(iii) (8 USC §1101(a)(15)(E)(iii))
[29] INA 101(a)(15)(H)(i)(b1) (8 USC §1101(a)(15)(H)(i)(b1))
[30] INA 214(g)(8) (8 USC §1184(g)(8))
[31] INA 101(a)(15)(B), (F), (J) (8 USC §1101(a)(15))
[32] INA 214(b) (8 USC §1184(b))
[33] INA 101(b)(1) (8 USC §1101(b)(1))
[34] Form I-539 Instructions
[35] 8 CFR §248.3
[36] INA 101(a)(15)(H) (8 USC §1101(a)(15)(H))
[37] 8 CFR §214.1(l)(2)
[38] Ibid., (l)(3)
[39] INA 212(a)(9)(B)(iv) (8 USC §1182(a)(9)(B)(iv))
[40] USCIS-AFM 40.9.2(b)(3)(B), archived May 7, 2020
[41] Travel out of US with H4 Extension, COS or H4 EAD Pending - Options?
[42] USCIS: Form I-797: Types and Functions
[43] INA 101(a)(15)(B) (8 USC §1101(a)(15)(B))
[44] 8 CFR §214.2(b)(7)
[45] 9 FAM 402.1-3(a)
[46] Plyler v. Doe, 457 U.S. 202 (1982)
[47] 8 CFR §248.3(a)
[48] Ibid., (b)
[49] I-129 – USCIS
[50] 8 CFR §248.1(a)
[51] INA 248(a) (8 USC §1258(a))
[52] Ibid., (b)
[53] USCIS-AFM 30.3(c)(11)(A), archived February 20, 2016
[54] Ibid., (d)(7)(A)
[55] 8 CFR §214.1(c)(1)
[56] Ibid., (c)(2)
[57] Ibid., (c)(3)
[58] Ibid., (c)(4)
[59] USCIS-AFM 30.2(c)(8)(A), archived August 24, 2019
[60] Ibid., (d)(7)(A)
[61] 8 CFR §214.2(f)(7)
[62] Ibid., (f)(16)
[63] Ibid., (f)(10)(ii)(D)
[64] Ibid., (f)(11)(i)(A)
[65] Ibid., (j)(1)(iv)
[66] 22 CFR §62.43
[67] CBP Inspector's Field Manual, 15.4(j)
[68] USCIS-AFM 40.9.2(b)(3)(A), archived May 7, 2020
[69] Ibid., (b)(3)(D)(vii)
[70] Ibid., (b)(3)(B)
[71] Ibid., (a)(2)
[72] USCIS - How do I extend my nonimmigrant stay in the United States?
[73] USCIS - Nonimmigrant Services
[74] INA 212(a)(9)(B)(iv) (8 USC §1182(a)(9)(B)(iv))
[75] 9 FAM 302.11-3(B)(5)
[76] CBP Inspector's Field Manual, 15.15(e)
[77] 8 CFR §274a.12(b)(20)
[78] USCIS-AFM 40.9.2(b)(3)(D), archived May 7, 2020
[79] USCIS - Notice to Appear Policy Memorandum
[80] Unlawful Presence in the United States - MyAttorneyUSA
[81] 8 CFR §235.1(h)(1)
[82] What the Visa Expiration Date Means - U.S. Department of State
[83] INA 264(e) (8 USC §1304(e))
[84] 81 FR 91654
[85] 8 CFR §1.4
[86] I-94 Automation Fact Sheet
[87] 11 USCIS-PM F.1
[88] 8 CFR §235.1(h)(2)
[89] CBP I-94 FAQ
[90] USCIS Handbook for Employers, Section 6.3
[91] 9 FAM 402.5-5(M)(3)
[92] Nonimmigrants: Who Can Study?