Just created an account to post that what "skh1998" posted is correct - If visa extension application (aka I-539 - Application to Extend/Change Nonimmigrant Status) is pending with USCIS the petitioner can legally stay for another 240 days from his I-94 departure date.
Not only 240 days. There is no limit to the amount of time they can stay after their I-94 departure date with a timely-filed, non-frivolous Extension of Stay or Change of Status application. There is no special significance of 240 days with respect to the ability to stay. The only thing involving 240 days is that people with a pending Extension of Stay in worker statuses are authorized to work for 240 days after their status expired. But 1) that is not relevant here as B2 status does not authorize work, and I-539 is not used for extension of any of the relevant worker statuses anyway, and 2) even for the relevant worker statuses, work authorization and ability to stay are separate -- an H1b worker can still stay after 240 days of pending extension, they just can't work.
There are several aspects related to ability to stay: 1) unlawful presence for the purposes of the unlawful presence bans, 2) visa invalidation under INA 222(g), and 3) likeliness of DHS to bring removal proceedings.
For unlawful presence, the statute protects against accrual of unlawful presence for 120 days while an EOS/COS is pending; but USCIS policy extends this to the entire period that a timely-filed, non-frivolous EOS/COS is pending. See USCIS 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 the person leaves while a timely-filed, non-frivolous EOS/COS is pending, they did not accrue unlawful presence. 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 the person is still in the US when a timely-filed, non-frivolous EOS/COS is denied, unlawful presence starts accruing on the day after the denial. See 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.
The Department of State's Foreign Affairs Manual is similar on this. See
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.
None of these mention 240 days.
For the INA 222(g) voiding of the visa, it does not affect someone who left the US while a timely-filed non-frivolous EOS/COS was pending. See
9 FAM 302.1-9(B)(1)(c)(4):
(4) (U) Applicants with Pending Change of Status or Extension of Status Applications: An applicant is not ineligible under INA 222(g) even though the departure date on Form I-94, Arrival-Departure Record, passes, if:
(a) (U) The applicant files a timely application for extension of stay or for a change of status; and
(b) (U) The application is approved. In addition, if an applicant departs after the date on the Form I-94 passes, but before their application for extension or change of status has been decided by USCIS, they must be subject to a blanket exemption from INA 222(g), if the application was filed in a "timely manner" and is "nonfrivolous" in nature. You may consider an application nonfrivolous if it is not, on its face, a groundless excuse for the applicant to remain in the United States to engage in activities incompatible with their status. Posts may be satisfied that an applicant filed in a timely manner using evidence such as a record in USCIS Person Centric Query Service (PCQS) or the dated receipt or canceled check from USCIS for the payment of the application fee to extend or change status together with evidence of the expiration of the applicant's legal status.
Whether a person who leaves while their EOS/COS is pending stayed for more or less than 240 days after I-94 expiry doesn't matter here.
As for USCIS not putting the person in removal proceedings, this is mentioned in
this brochure:
What if I file for an extension of stay on time but USCIS
doesn’t make a decision before my I–94 expires?
Your lawful nonimmigrant status ends, and you are out of status,
when your Form I-94 expires, even if you have timely applied
to extend your nonimmigrant status. Generally, as a matter of
discretion, USCIS will defer any removal proceedings until after
the petition is adjudicated and USCIS decides your request for
extension of nonimmigrant status. Nevertheless, DHS may bring a
removal proceeding against you, even if you have an application for
extension of status pending.
Even though you are not actually in a lawful nonimmigrant
status, you do not accrue “unlawful presence” for purposes of
inadmissibility under section 212(a)(9)(B) of the Immigration and
Nationality Act, while your extension of status application is pending
if it was filed prior to the expiration of your Form I-94.
Although 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 if USCIS receives your application
before your Form I-94 expires, and you have not violated the terms
of your nonimmigrant status. You may be required to stop working
immediately when the first of the following events occurs:
• 240 days elapses from the date your I-94 expires; or
• USCIS has made a final decision denying your extension
application.
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
while your application is pending will then be considered to have
been lawful.
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).
Here, it says that USCIS will generally defer removal proceedings until after the application is adjudicated, though they theoretically have the right to bring it at any time. It doesn't say that they are more likely to bring it after a certain number of days. The only mention of 240 days here is in relation to the extension of work authorization for people in work statuses. Again, this is separate from how long they can stay.
If you have seen any official law, regulation, manual, or other policy document that treats staying more than 240 days (or any other particular number of days) after I-94 expiry any differently from staying less than 240 days after I-94 expiry, please share it with us.
