Applied for B-2 extension to 9/30. No response yet. Options to stay in country?

[mark_titus]

I'm Canadian and had been in B-2 tourist status until May 15th 2020. Not wanting to fly due to COVID, I filed a timely extension request asking to extend B-2 until Sept 30th. (I now realize this was dumb; I should have just asked for a full 6 months, instead of 4.5.) I've heard processing times for B-2 extensions are > 1 year (!?), so there's nearly 0% chance I'll get a reply before 9/30, but at this point it's essentially moot since 9/30 is nearly here....all that really mattered is that I was never out of status due to my timely filing of the I-539 extension request.

I'd prefer not to leave (since even as a Canadian, options of re-entry are a guessing game.) I want to know if I have options to stay beyond 9/30

1. If I don't file anything additional, but no action has been taken on my case, will I be deemed out of status if I stay in the country beyond 9/30? (USCIS site says that provided timely extension request is filed, you won't be deemed out of status if your B-2 expires, but I could find no mention of what happens if you don't get a response by your requested extension date.
2. Can I file another I-539 extension (even without having gotten a response on the first one?) Let's say I file an I-539 requesting an extension until 12/31...chances are I won't get a response to either of my extension requests by then...but could I be deemed to have been out of status at any point?

[newacct]

1. You have been "out of status" after May 15. A pending application does not affect your status. However, a timely-filed, non-frivolous Extension of Stay or Change of Status does prevent you from accruing "unlawful presence" (for the purposes of the 3/10-year ban) while it is pending. I believe that a pending EOS/COS prevents you from accruing unlawful presence while it is pending even if it is past the requested date.
2. Yes. Again, you have been out of status since May, but as long as your first EOS remains pending, you do not accrue unlawful presence. If your first EOS is approved, your second EOS is timely-filed (since it was filed within the period granted by approval of the first EOS), and so you do not accrue unlawful presence while the second EOS is pending. If your first EOS is denied, your second EOS is not timely-filed, and you start to accrue unlawful presence from the date of denial of the first EOS.

[mark_titus]

1. You have been "out of status" after May 15. A pending application does not affect your status. However, a timely-filed, non-frivolous Extension of Stay or Change of Status does prevent you from accruing "unlawful presence" (for the purposes of the 3/10-year ban) while it is pending. I believe that a pending EOS/COS prevents you from accruing unlawful presence while it is pending even if it is past the requested date.
2. Yes. Again, you have been out of status since May, but as long as your first EOS remains pending, you do not accrue unlawful presence. If your first EOS is approved, your second EOS is timely-filed (since it was filed within the period granted by approval of the first EOS), and so you do not accrue unlawful presence while the second EOS is pending. If your first EOS is denied, your second EOS is not timely-filed, and you start to accrue unlawful presence from the date of denial of the first EOS.

OK, thank you for the reply, but what happens in the event that I do NOT file a second EOS I-539? I only asked for an extension to Sept 30th in that first EOS, right? From what I hear, processing times are currently over a year, so I think it highly unlikely that they get to my first EOS before the end of the year...would I accrue 'unlawful presence' after Sept 30th, given that even if they approved my EOS, that would presumably only give me until Sept 30th. Or am I in some counter-intuitive (but not unlawful) "no-mans-land" if my EOS is still technically pending (aka not ruled on), but the requested-until date in the EOS has come and gone?

[Sang15512]

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