Pending I-538 and I-94 about to expire, should I stay on?

[Fariha Nasir Hassaan]

I filed for a change of status application from B1/B2 to F2 (my husband is on his OPT in the US and I came here for a visit, immigration officer at entry suggested I file for change of status to husband's status) Two months after I filed the application I received a request for evidence for a copy of my marriage certificate (in native language, we had already send a translation)

It has been three weeks since we sent that in and my I-94 expires on the 14th of August. Should I stay on until I get a decision? If I get declined and leave within 10 days, will I still have unlawful presence?

[Fariha Nasir Hassaan]

Found this on USCIS website about unlawful presence/stay, unsure about what it means in my case


(2) Distinction Between “Unlawful Status” and “Unlawful Presence ”

To understand the operation of sections 212(a)(9)(B) and 212(a)(9)(C)(i)(I) of the Act, it is important to comprehend the difference between being in an unlawful immigration status and the accrual of unlawful presence (“period of stay not authorized”). Although these concepts are related (one must be present in an unlawful status in order to accrue unlawful presence), they are not the same.

As discussed in chapters 40.9.2(b)(2) and 40.9.2(b)(3) of the AFM , there are situations in which an alien who is present in an unlawful status nevertheless does not accrue unlawful presence. As a matter of prosecutorial discretion, DHS may permit an alien who is present in the United States unlawfully, but who has pending an application that stops the accrual of unlawful presence, to remain in the United States while that application is pending. In this sense, the alien’s remaining can be said to be “authorized.” However, the fact that the alien does not accrue unlawfu l presence does not mean that the alien’s presence in the United States is actually lawful.

[peace999]

Extension and change of status apps sometimes take 8-12 weeks to get processed.
It is very likely that your response will come after aug 14.

Past aug 14 you won't have a lawful status but you won't have unlawful presence tiil your denial is received.
Even after a denial they give you 1-2 days to leave.
The practical implications of this will be when you enter next time on that same visa. The computer having recorded an overstay ,
the burden will be on you to prove that you got a denial of status change ( show letter) and that you left asap.


So, it is your call.
In my view, If there are no document problems, your status change should be approved. YOu could afford to take this chance.

Also remember, if you ever want a B1/B2 again in India, it will be very difficult to get as they give a hard time to people
changing status in US.