E. Effect of Pending Application or Petition
Extension of Stay or Change of Status
A noncitizen may file an adjustment application after expiration of his or her nonimmigrant status while the noncitizen’s timely-filed EOS or COS application is pending.
[18] In such cases, the officer should defer adjudication of the adjustment application until USCIS adjudicates the EOS or COS application so long as there are no other grounds for denial.
If USCIS ultimately approves the EOS or COS application, then the noncitizen is considered to be in lawful immigration status on the date the adjustment application is filed. If USCIS denies the EOS or COS application, then the noncitizen is generally considered to be in unlawful immigration status as of the expiration of the noncitizen’s current nonimmigrant status and likewise on the date the adjustment application is filed. In this instance, the
INA 245(c)(2) bar would apply, unless an exemption is available.
An applicant is barred from adjustment of status if the applicant is in an unlawful immigration status on the date of filing the adjustment application.
www.uscis.gov