If you are applying for an extension to nonimmigrant, employment status and you file on time, you may be allowed to continue to work while your extension application is pending for a period of up to 240 days.
Q: Dear Berardi Immigration Law,
My TN status expired on February 1st, 2016. Before that on August 15th, 2015, I filed an application with USCIS. Six months later, it is still pending and the government’s processing times show significant delays. If USCIS doesn’t make a decision before my I–94 expires, am I out of status?
A. When your Form I-94 expires, even if you have timely applied to extend your nonimmigrant status, you are considered “out of status.”
HOWEVER, while you are out of status, you may be permitted, depending on your classification, to continue your previously authorized employment for a maximum period of 240 DAYS, while your extension application is pending.
Q: What is the “240 Day Rule”?
A. A nonimmigrant beneficiary can continue his or her employment with the petitioning employer while his or her extension of stay is pending with USCIS, for a period of up to 240 days beyond the expiration of the period of authorized stay.
Even though the beneficiary is not actually in a lawful nonimmigrant status during the pendency of such a petition, he or she does not accrue “unlawful presence.”
The 240 day rule is one example of a variety of situations where a person may not be in “lawful status” (out of legal status), but is still not accumulating “unlawful presence.” Once the application for extension has been approved, the period in question will then be considered lawful.
Q: If I am eligible for an extension of stay and file on time, will my stay be extended?
A. An extension of stay is not automatic. USCIS will look at your situation, your status, and the reasons you want to extend your stay before deciding whether or not to grant your application.
Q: What happens if my extension of stay is approved?
A. If your application for an extension of stay is approved, the approval will relate back to the date your Form I-94 expired, and your status during the pendency of your application will then be considered to have been lawful.
Q: What if my extension is denied?
A. If your application is denied, you may be required to cease employment and depart the United States immediately.
In addition, any nonimmigrant visa in your passport granted in connection with your classification becomes void. Once your visa is void, you must submit any new visa application at a U.S. consulate in your home country (not a third country, except in rare instances as determined by the U.S. Department of State).
Q: After I file, how can I check on the status of my extension application?
A. After you file, USICS will mail you a receipt with an assigned number you can use to track your application, as well as the estimated processing time. Your receipt will also give instructions on how you can use this receipt number to check the status of your case on the USICS website.
If you are interested in working in the U.S. and applying for an employment-based visa, contact our office to schedule a consultation with one of our attorneys today!