For those of you who are regular readers of this column, you will recall our recent piece on the inconsistent application of Maintenance of Status determinations by the Bureau of Citizenship and Immigration Services (BCIS) formerly INS. These arose out of the application of an INS policy on nonimmigrants who apply to change or extend their nonimmigrant status. The INS has established a policy that one who filed for an extension or change of status before the expiration of one’s current status would be in a period of stay authorized by the Attorney General while the application was pending.
For example, if a tourist was admitted until February 1, 2003 and he applied to extend his tourist status for another six months on January 30, 2003, he would be considered to be in a period of stay authorized by the Attorney General. Even thought his first status would end on February 1, 2003, he would not accrue unlawful presence while the INS adjudicated his case. But, if his application was ultimately denied, he would accrue unlawful presence starting February 1, 2003.
This policy was implemented because of the delays in processing by the INS. Many INS service centers were taking longer (and are still taking longer) than six months to process applications and petitions to extend or change status. This six month period is critical because, generally, any one present in the U.S. for six months or more beyond the expiration date issued on one’s I-94 card triggers a three-year bar from returning to the U.S. Time spent in the U.S after the I-94 card expires is considered unlawful presence. A clock starts counting on the day the I-94 expires. If it reaches 180 days, the person faces a three-year bar from entering the U.S. If it reaches 365 days, a ten-year bar is in place.
Because the INS processing times exceeded six months and a year in many nonimmigrant applications and petitions, and at the behest of immigration practitioners, the INS instituted a policy to consider the time spent in processing as a period of stay authorized by the attorney general. This meant no unlawful presence will accrue.
A complication arose when one chose to file subsequent application(s) or petition(s) while one was in a period of stay authorized by the attorney general. In order to file for an extension or change of status, one must be maintaining nonimmigrant status. Some INS officers were interpreting maintenance of status to end on the expiration of the I-94, while others considered the alien to be maintaining status only if the alien was in a period of stay authorized by the attorney general.
This scenario typically occurs when a tourist applies for an extension of tourist status. While the extension is pending, and after the expiration of the I-94, the tourist is offered a job. The new employer then files a change of status petition to H-1B. Because the I-94 had already expired, some INS adjudicators would deny a change of status since they considered the alien to no longer be maintaining status. Other adjudicators would grant the change of status because they equated “period of stay authorized by the attorney general” as maintaining status.
The BCIS has just issued a new policy memorandum clarifying this issue. Essentially, the BCIS has determined that a period of stay authorized by the attorney general does not mean an alien is maintaining status. As such, once the I-94 card expires, any subsequent applications to extend or change status cannot be granted since the alien is not considered to be maintaining status. The new policy does suggest that subsequent applications or petitions may be granted if the application or petition filed before the I-94 card expired is ultimately approved. However this remains to be seen and is another foreseeable area of confusion and inconsistent application by the BCIS.