B2 Visa Extension.Am I Legal or Illegal?

[Khan14 0]

Hello,

I need a little help with an issue.

I applied for my B2 Visa extension 2 days before my original entry to U.S expired but the package was received by Immigration 1 to 2 days after the expiry of my visa.I got the acknowledgement letter from immigration that they have received my package and that they are going to process it.I have the fedex receipt with me showing that i mailed the visa extension package 2 days before my visa expired.

Now my question is that am i still legal in U.S?

Or God forsaken illegal?

I will really appreciate help in this regard.

Thank you.

Edited February 21, 2016 by Khan14

[Boiler 45,949]

Not sure filing gets you back into status?

[Hypnos 6,578]

I believe you are considered out of status since you did not file a timely extension request.

[Boiler 45,949]

sounds logical.

[Transborderwife 4,666]

Why did you wait so long to request?

[newacct 688]

There is no formal definition of a person being "legal" or "illegal" in immigration law. It depends on what you mean by "illegal", i.e. what specific consequence you are asking about. There are several related, but different, terms, each related to different consequences.

• Out of status - This means you do not currently have a "status". One can be out of status if they violate the terms of their status (e.g. working while on B-2 status, not staying in school in F-1 status, etc.) or staying past the date on the I-94. You are out of status, as is all people who have passed the date on the I-94. However, being out of status is not necessarily bad as it is actually a common occurrence for people who have done everything "legally" -- people often fall out of status while a Change of Status, Extension of Status, or Adjustment of Status application is pending, due to the sheer length of time it takes to process these applications. This includes everyone who legally immigrates on K-1 fiance visas; they will invariably be out of status for a period of time. There is no specific consequence for being out of status per se.
• Unlawful presence - This is a concept used in the context of the INA 212(a)(9)(B) and (9)© bans. Someone who has accrued 180 days of "unlawful presence" and then leaves the US is banned for 3 years; someone who has accrued 1 year of "unlawful presence" and then leaves the US is banned for 10 years. There are also lifetime bans for accruing 1 year of "unlawful presence" and then entering illegally again. What triggers "unlawful presence" is discussed in AFM chapter 40.9.2 and 9 FAM 302.9-14. "Unlawful presence" generally only starts when a person stays past the date on their I-94 (or had been declared out of status by USCIS or an immigration judge). (Unlawful presence is different from being out-of-status as a status violation by itself does not trigger unlawful presence. So someone who works on B-2 but whose I-94 hasn't expired, or who stays past graduation indefinitely on F-1, would not be accruing "unlawful presence", even though most people would consider them "illegal".) Also, unlawful presence does not accrue while a timely-filed and non-frivolous Change of Status, Extension of Status, or Adjustment of Status application is pending, or the person has been granted DACA, or (for the 9B ban) if the person is under 18. "Timely filed" means filed (physically received) while the person is in status, and your Extension of Status application was filed (received by USCIS) after your I-94 expired, so it was not timely filed, so you are not protected from accruing unlawful presence by your pending application. However, if USCIS in their discretion excuses your untimely filing and approves it, I believe you would not be considered to have accrued unlawful presence.
• INA 222(g) - This section causes the person's visa to be voided and the person to have to apply for visas only from their country of nationality in the future. It is described in 9 FAM 302.9-10. It is triggered by pretty much the same conditions as "unlawful presence", namely, staying past the date on the I-94, but not if there is a pending, timely-filed, non-frivolous Change of Status or Extension of Status application. Again, your application was not timely filed, so you would have triggered INA 222(g), which means the visa you used to enter the US is void and you have to apply for visas from your country of nationality in the future, unless USCIS decides in their discretion to accept and approve your late application, in which case you would not have triggered INA 222(g), according to the table in that section.
• Deportable - This is the closest we say someone is "illegal" -- that they could be deported if caught; if they are not going to be deported, then how is that different from being "legal"? However, the rules for what people are deported are not formally well defined. The law simply says people who are out of status can be deported. On this site we generally tell people that they are not deportable while a timely-filed, non-frivolous Change of Status, Extension of Status, or Adjustment of Status application is pending. However, this is not written anywhere officially; it is simply longstanding practice of prosecutorial discretion by the ICE not to pursue deportation for these cases. Would they apply the same prosecutorial discretion in your case where your Extension of Status was not timely filed? It's unclear.

[az2014 381]

<p>

There is no formal definition of a person being "legal" or "illegal" in immigration law. It depends on what you mean by "illegal", i.e. what specific consequence you are asking about. There are several related, but different, terms, each related to different consequences.

• Out of status - This means you do not currently have a "status". One can be out of status if they violate the terms of their status (e.g. working while on B-2 status, not staying in school in F-1 status, etc.) or staying past the date on the I-94. You are out of status, as is all people who have passed the date on the I-94. However, being out of status is not necessarily bad as it is actually a common occurrence for people who have done everything "legally" -- people often fall out of status while a Change of Status, Extension of Status, or Adjustment of Status application is pending, due to the sheer length of time it takes to process these applications. This includes everyone who legally immigrates on K-1 fiance visas; they will invariably be out of status for a period of time. There is no specific consequence for being out of status per se.
• Unlawful presence - This is a concept used in the context of the INA 212(a)(9)(B) and (9)© bans. Someone who has accrued 180 days of "unlawful presence" and then leaves the US is banned for 3 years; someone who has accrued 1 year of "unlawful presence" and then leaves the US is banned for 10 years. There are also lifetime bans for accruing 1 year of "unlawful presence" and then entering illegally again. What triggers "unlawful presence" is discussed in AFM chapter 40.9.2 and 9 FAM 302.9-14. "Unlawful presence" generally only starts when a person stays past the date on their I-94 (or had been declared out of status by USCIS or an immigration judge). (Unlawful presence is different from being out-of-status as a status violation by itself does not trigger unlawful presence. So someone who works on B-2 but whose I-94 hasn't expired, or who stays past graduation indefinitely on F-1, would not be accruing "unlawful presence", even though most people would consider them "illegal".) Also, unlawful presence does not accrue while a timely-filed and non-frivolous Change of Status, Extension of Status, or Adjustment of Status application is pending, or the person has been granted DACA, or (for the 9B ban) if the person is under 18. "Timely filed" means filed (physically received) while the person is in status, and your Extension of Status application was filed (received by USCIS) after your I-94 expired, so it was not timely filed, so you are not protected from accruing unlawful presence by your pending application. However, if USCIS in their discretion excuses your untimely filing and approves it, I believe you would not be considered to have accrued unlawful presence.
• INA 222(g) - This section causes the person's visa to be voided and the person to have to apply for visas only from their country of nationality in the future. It is described in 9 FAM 302.9-10. It is triggered by pretty much the same conditions as "unlawful presence", namely, staying past the date on the I-94, but not if there is a pending, timely-filed, non-frivolous Change of Status or Extension of Status application. Again, your application was not timely filed, so you would have triggered INA 222(g), which means the visa you used to enter the US is void and you have to apply for visas from your country of nationality in the future, unless USCIS decides in their discretion to accept and approve your late application, in which case you would not have triggered INA 222(g), according to the table in that section.
• Deportable - This is the closest we say someone is "illegal" -- that they could be deported if caught; if they are not going to be deported, then how is that different from being "legal"? However, the rules for what people are deported are not formally well defined. The law simply says people who are out of status can be deported. On this site we generally tell people that they are not deportable while a timely-filed, non-frivolous Change of Status, Extension of Status, or Adjustment of Status application is pending. However, this is not written anywhere officially; it is simply longstanding practice of prosecutorial discretion by the ICE not to pursue deportation for these cases. Would they apply the same prosecutorial discretion in your case where your Extension of Status was not timely filed? It's unclear.

That's a copy + paste surely right?

[Khan14 0]

Here is why i got late for just 10 hours..My visa was due to expire on 28thh and on 25th, the friday i called the fedex and asked if i will post my package as a next day delivery on saturday, will it reach the destination by 28th.The answer was yes but the lady from fedex didn't tell me that the last pick up on saturday is at 4 pm.So i got to the fedex office at 6 pm and was told that the next pick up will be on monday, the 28th and so my package was received by immigration at 9: 36 am on tuesday, the 29th.Will immigration ignore this or simply deny my application.

By the responses given above i feel i am at unlawful.presence.In such case what should i do now?

And thank you so much to everyone for the replies.

[Khan14 0]

And additionally the acknowledgement that i received from immigration also stated some sort of number and it said that this number should be kept safe with me as it will be the proof that i have applied for extension so that i am not deemed as illegal.

My fruend has my letter,i will get it from him tomorrow and update as to what the letter says to make things clear.