Written by What is my status while an extension application is pending?
Foreign nationals stay busy tracking numerous expiration dates related to their ability to live and work in the United States. Consider the burden of ensuring passports are kept current, that foreign travel is completed before the visa issued by a consular post expires, and that they never stay beyond the authorized date on the I-94 card. But what happens when a petition to extend status is filed before the I-94 expiration date?
Period of Stay Authorized by the Attorney General
A timely-filed extension application allows the beneficiary to remain in the United States until a final decision is made on the application. This time period is recognized as “a period of stay authorized by the Attorney General,” and does not count as unlawful presence when considering the 3 and 10 year bars to readmission. If the extension application is ultimately approved, then the entire period is counted as being in lawful immigration status. If the application is denied, however, the time it took USCIS to make a decision on the application after the I-94 expiration date does NOT count as lawful immigration status.
Automatic Extension of Employment Authorization
A timely-filed extension application for an employment-based category (A-3, E-1, E-2, E-3, G-5, H-1, H-2, H-3, I, J-1, L-1, O-1, O-2, P-1, P-2, P-3, Q-1, R-1, or TN) automatically extends employment authorization with the same employer for up to 240 days after the I-94 expiration date. (8 C.F.R. § 274a.12(b)(20)). The automatic employment authorization ends earlier if USCIS makes a decision on the application, either granting a new period of authorization, or denying the extension application.
When USCIS takes an extraordinarily long time to issue a decision on the extension application, it may be necessary to file another extension application before the 240 days have passed.
Lawful Immigration Status
“Lawful immigration status” is granted to foreign nationals “whose initial period of admission has not expired or whose nonimmigrant status has been extended.” 8 C.F.R. § 245.1(d)(1)(ii). For most applicants, the legal distinction between “lawful immigration status” and “period of stay authorized by the Attorney General” or the 240-day automatic extension, will have no impact on their long-term immigration goals, so long as the extension applications are ultimately approved. But keep in mind that these three legal principles are not the same.
The Fifth Circuit ruled yesterday in Bokhari v. Holder, No. 09-60538 (5th Cir. Sep. 29, 2010), that the automatic employment authorization that comes with a timely-filed extension application does not provide “lawful immigration status.” The court’s ruling reaffirmed a 1976 decision from the Board of Immigration Appeals that “a grant of an extension request confers lawful status, not the filing of the request.” (citing In re Teberen, 15 I&N Dec. 689, 690 (BIA 1976)).
Applications for adjustment of status (green card) based on employment-based petitions will be denied if the foreign worker was in “unlawful immigration status” at the time of filing, or had failed to maintain continuously a lawful status since last entering the United States, but only if the aggregate period without lawful status exceeded 180 days. In other words, a green card applicant who is awaiting approval on an H-1B extension application, for example, is authorized to work and stay in the U.S. while the extension application is pending, but is not maintaining “lawful immigration status” until the extension is retroactively approved.
To learn more about maintaining lawful immigration status for yourself or your employees, contact Immigration Attorney D.Ray Mantle today.
