Does the 240 day apply to Tourist (B2) Visa Extensions?

[katsyl]

I'm documenting our experience so others can know what the process has been like for us, but I'd also like advice from anyone who knows something about the endless bureaucracy that is this USCIS experience.

My partner is Australian, we aren't married; I am a US Citizen. He entered into the USA February 2020 (Right before Covid lockdowns!) He is someone who doesn't fly; he hasn't flown since 2011 and has been travelling around the world via boat, train, etc. This makes things oh-so-complicated.

• We applied for an extension citing Covid-19, incredibly expensive air travel costs, airline safety due to covid, etc as our reasons for extension. Our current exit strategy was to wait for passage on a ship, but it has been continually cancelled due to Covid. The next one is set to leave March 2022, and we hope to stay here until that ship sails.

History of process to date:

• Extension application #1 I-539: He applied to extend his I-94 (B1/B2 visa) in June 2020;We didn't hear back from anyone
• Extension application #2: I-539: In January 2021, he filed another extension application because he hadn't heard back. This was within the 180 days of filing the first one.
• Fingerprints taken: June 2021: He got fingerprinted
• We decided to remain in USA due to COVID; our previous exit tickets had been cancelled due to Covid; Applications #1 & 2 still pending.
• January 2022: Approval of application #1: He received approval of application #1 through to February 2021. (But it's 1 year later!! so it's a bit confusing!)
• January 2022: Called USCIS talked to agent about Application #2: Agent said that he is still allowed to remain in the country while Application #2 is pending.

So... the question is, do we remain here until we get a ruling on this one?

I have so many questions:

• If they only approve his extension to a point in the past, but they say that you are allowed to stay while you wait for approval... does that mean he's out of status while he waits?
  • If they approve it, his extension will only have been valid until August 2021 (Does this mean his stay from August-January will be uncovered?? will he incur a 3 year ban for being 180 days out of status?)
  • If they don't approve it, then will he be out of status for 1 year? And risk a 10-year ban?
• If we decide to exit via land (Canada/Mexico) do we run the risk of barred entry because we left before the extension was approved?
• The goal is to be able to leave the United States in March 2022 via ship.

Let me know if you have any advice or if you have experienced anything similar!

Thanks!

[newacct]

There is nothing about "240 days" for the ability to stay, for any status. Someone with a pending timely-filed, non-frivolous Extension of Stay or Change of Status application can stay for as long as that application is pending. It is not limited to any number of days. You may be thinking of the 240-day extension of work authorization for people with pending extension in worker statuses (but even for worker statuses, they can stay for as long as the Extension of Stay is pending -- they just can't work after 240 days), but that's obviously not relevant to non-worker statuses that have no work authorization in the first place.

If they don't approve it, then will he be out of status for 1 year? And risk a 10-year ban?

You are thinking of the unlawful presence ban, where accruing 180 days of "unlawful presence" and then leaving the US triggers a 3-year ban, and accruing 1 year of "unlawful presence" and then leaving the US triggers a 10-year ban. What matters here is "unlawful presence", not "out of status". He does not accrue "unlawful presence" for the entire period that a timely-filed, non-frivolous EOS/COS is pending. If the timely-filed, non-frivolous EOS/COS is denied, "unlawful presence" only starts accruing on the day after the date of the denial.

See Adjudicator's Field Manual chapter 40.9.2(b)(3)(B) (on page 87 of this PDF):

However, according to USCIS policy, an alien does not accrue unlawful presence (the accrual of unlawful presence is tolled), and is considered in a period of stay authorized for purposes of sections 212(a)(9)(B)(i)(I), (B)(i)(II), and (C)(i)(I) of the Act during the entire period a properly filed EOS or COS application is pending, if the EOS or COS application meets the following requirements:
· the non-frivolous request for EOS or COS was filed timely. To be considered timely, the application must have been filed with USCIS, i.e. be physically received (unless specified otherwise, such as mailing or posting date) before the previously authorized stay expired. See 8 CFR 103.2(a)(7) ; 8 CFR 214.1(c)(4) ; 8 CFR 248.1(b) . An untimely request may be excused in USCIS’ discretion pursuant to 8 CFR 214.1(c)(4) and 8 CFR 248.1(b); and
· the alien did not work without authorization before the application for EOS or COS was filed or while the application is pending; and
· the alien has not failed to maintain his or her status prior to the filing of the request for EOS or COS.
If these requirements are met, the period of authorized stay covers the 120-day tolling period described in section 212(a)(9)(B)(iv) of the Act and extends to the date a decision is issued on the request for EOS or COS.

and chapter 40.9.2(b)(3)(D)(iv) (on page 89):

If a timely filed, non-frivolous request for EOS or COS is denied for cause, unlawful presence begins to accrue the day after the request is denied.

If we decide to exit via land (Canada/Mexico) do we run the risk of barred entry because we left before the extension was approved?

If he leaves the US while a timely-filed, non-frivolous EOS/COS was pending, no "unlawful presence" is accrued. See chapter 40.9.2(b)(3)(C) (on page 88):

Departure from the United States while a request for EOS or COS is pending, does not subject an alien to the 3-year, 10-year, or permanent bar, if he or she departs after the expiration of Form I-94 , Arrival/Departure Record unless the application was frivolous, untimely, or the individual had worked without authorization.

If they approve it, his extension will only have been valid until August 2021 (Does this mean his stay from August-January will be uncovered?? will he incur a 3 year ban for being 180 days out of status?)

As to when "unlawful presence" starts to accrue in this case, the manual does not specifically say, but I believe that it would only begin accruing on the day after the application is approved, because, logically, the situation if the application is approved should not be any worse than if it were denied.


The above points are also reflected in the State Department's Foreign Affairs Manual, 9 FAM 302.11-3(B)(1)(b)(4):

b. (U) DHS has interpreted "period of stay authorized by the Secretary of Homeland Security," as used in this context, to include:
(4) (U) For individuals who have applied for extension of stay or change of nonimmigrant classification and who have remained in the United States after expiration of the I-94 while awaiting DHS's decision, the entire period of the pendency of the application, provided that:
(a) (U) the individual does not work unlawfully while the application is pending and did not work unlawfully prior to filing the application; and
(b) (U) the individual did not otherwise fail to maintain his or her status prior to the filing of the application (unless the application is approved at the discretion of USCIS and the failure to maintain status is solely a result of the expiration of the Form I-94), and further provided either:
(i) (U) that the application was subsequently approved; or
(ii) (U) if the application was denied or the individual departed while the application was still pending, that the application was timely filed and nonfrivolous.

The above rules apply to timely-filed and non-frivolous EOS/COS, so the question is whether his second EOS is timely-filed. My personal interpretation is that it should be considered timely-filed, because it was filed in January 2021, before the February 2021 expiration of the status granted by the approved first EOS. USCIS Adjudicator's Field Manual chapter 40.9.2(b)(3)(D)(vii) (on page 90 of the PDF) mentions issues about multiple filings for EOS/COS:

Therefore, if an individual has filed an initial application for EOS or COS and subsequently files additional (untimely) requests for EOS or COS, the subsequently filed request will not stop the individual from accruing unlawful presence, if the initial request is denied.

In this case if the first EOS/COS is denied, so the second EOS/COS is untimely-filed. But I think the fact that it only mentions the case where the first EOS/COS is denied is significant, suggesting that if the first EOS/COS were approved and status retroactively granted, then the second EOS/COS could be considered timely-filed (i.e. if it was filed within the period of retroactively-granted status by the first EOS/COS). That is my personal interpretation.

[katsyl]

Dear newacct
Hi, I wanted to say thank you for the advice you gave regarding my post. We were the ones writing about the extension to the Tourist visa, and whether or not the 180 days is applied while the visa is being processed.

I appreciate that you quoted the evidence for your advice. It helped us feel at ease.

I was wondering what your process is for giving professional consultation should we need it and would be willing to pay for it.

Thank you in advance,

Kat