H-1b visa grace period [merged threads]

[Bajinga 136]

I think the best course for OP would be to leave soon before the decision is made on the I-539. that avoids accruing any unlawful presence and consular processing can be done for a potential H1b application in the future. COS in this case does not seem like a good choice.

Edited September 9, 2022 by Bajinga

[Family 4,068]

15 minutes ago, arken said:

The B2 cos receipt notice does give you an authorized stay while it is being processed. It does not give you any status though unless it's approved. However it is taking more than a year to process it and the maximum it will allow you to stay is 6 months. You have to leave the US regardless within 6 months while it's pending. If you stay beyond 6 months and you get the approval for 6 months, any stays beyond 6 months will be considered overstay. If your B2 is denied and you are still in the US, the entire stay from Sep 11 will be considered overstay.
 

 If your employer files for H1B transfer while B2 cos is pending, your B2 has to be approved first before your h1b can be approved because you won't have any status to change it back to H1b when it's filed. You can't work for your new employer when H1B transfer is filed unlike usual H1B transfer where one can start work while it is processed. You don't have a valid status for H1B transfer while b2 is pending so you cannot work.

OP , please read above post, a few times if needed for clarity .

Now can you please share what “ insights “ and “ risks” you were advised of that convinced you to blow your status?? 

[Mike E 11,741]

45 minutes ago, Timona said:

 

I don't think receipt notice gives you anything...she should have started the process long ago. USCIS don't care. I remember a few cases like this at the midst of COVID @Mike E @Crazy Cat @arken

https://www.uscis.gov/sites/default/files/document/guides/C1en.pdf
 

“Employment-Based Categories: If you are in one of the following employment-related categories, your employer should file a Form I-129, Petition for Nonimmigrant Worker, before the date your Form I-94 expires:“

 

“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.”

 

Its the most bizarre and useless form USCIS has.  

[Ryan H 3,818]

~~~Similar topics merged for a second time, do not start multiple threads on the same issue.~~~

[nastra30 2,300]

7 hours ago, Timona said:

 

I don't think receipt notice gives you anything...she should have started the process long ago. USCIS don't care. I remember a few cases like this at the midst of COVID @Mike E @Crazy Cat @arken

There was a policy change in 2021 (I think) that gives one 'authorized stay' when they apply for COS from one non-immigrant status to non-immigrant status.

Edited September 9, 2022 by nastra30

[Crazy Cat 41,985]

8 hours ago, Bajinga said:

Filing a I-539 provides period of authorized stay till the decision is made.

Chapter 3 - Unlawful Immigration Status at Time of Filing (INA 245(c)(2)) | USCIS

E. Effect of Pending Application or Petition

A pending application to extend or change status (Form I-129 or Form I-539), a pending adjustment application, or a pending petition does not confer lawful immigration status on an applicant. In addition, a pending application or petition does not automatically afford protection against removal if the noncitizen’s status expires after submission of the application. The noncitizen may have no actual lawful status in the United States and may be subject to removal proceedings unless and until the extension of stay (EOS) application, change of status (COS) application, adjustment application, or petition is approved. 

Edited September 9, 2022 by Crazy Cat

[Crazy Cat 41,985]

As @Mike E stated, the I-539 is the most useless USCIS form that exists. 

[sammyiee 1]

9 hours ago, arken said:

The B2 cos receipt notice does give you an authorized stay while it is being processed. It does not give you any status though unless it's approved. However it is taking more than a year to process it and the maximum it will allow you to stay is 6 months. You have to leave the US regardless within 6 months while it's pending. If you stay beyond 6 months and you get the approval for 6 months, any stays beyond 6 months will be considered overstay. If your B2 is denied and you are still in the US, the entire stay from Sep 11 will be considered overstay.
 

 If your employer files for H1B transfer while B2 cos is pending, your B2 has to be approved first before your h1b can be approved because you won't have any status to change it back to H1b when it's filed. You can't work for your new employer when H1B transfer is filed unlike usual H1B transfer where one can start work while it is processed. You don't have a valid status for H1B transfer while b2 is pending so you cannot work.

 

 

I am aware, in this case, I plan to go back and withdraw my B2 application and come back with H-1b.

[sammyiee 1]

1 hour ago, Crazy Cat said:

Chapter 3 - Unlawful Immigration Status at Time of Filing (INA 245(c)(2

8 hours ago, Mike E said:

https://www.uscis.gov/sites/default/files/document/guides/C1en.pdf
 

“Employment-Based Categories: If you are in one of the following employment-related categories, your employer should file a Form I-129, Petition for Nonimmigrant Worker, before the date your Form I-94 expires:“

 

“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.”

 

Its the most bizarre and useless form USCIS has.  

)) | USCIS

E. Effect of Pending Application or Petition

A pending application to extend or change status (Form I-129 or Form I-539), a pending adjustment application, or a pending petition does not confer lawful immigration status on an applicant. In addition, a pending application or petition does not automatically afford protection against removal if the noncitizen’s status expires after submission of the application. The noncitizen may have no actual lawful status in the United States and may be subject to removal proceedings unless and until the extension of stay (EOS) application, change of status (COS) application, adjustment application, or petition is approved. 

I wouldn't be under any status but I am allowed to stay unlike with grace period ending, I'd have to leave immediately.

9 hours ago, Bajinga said:

I think the best course for OP would be to leave soon before the decision is made on the I-539. that avoids accruing any unlawful presence and consular processing can be done for a potential H1b application in the future. COS in this case does not seem like a good choice.

Yes, I plan on leaving and coming back with H-1b. I know its not going to be as simple but this seems like a possibility.

[Crazy Cat 41,985]

5 minutes ago, sammyiee said:

I wouldn't be under any status but I am allowed to stay

That isn't how I read it. I read it as subject to removal.  Good luck. 

Edited September 9, 2022 by Crazy Cat

[sammyiee 1]

19 minutes ago, Crazy Cat said:

That isn't how I read it. I read it as subject to removal.  Good luck. 

I spoke with the lawyers on this, I would not have a "lawful status" but I will have an "authorized stay" and there's a difference between these two. Nevertheless, it comes with risks.

[Timona 4,208]

9 minutes ago, Crazy Cat said:

That isn't how I read it. I read it as subject to removal.  Good luck. 

 

Exactly. I even don't know what the argument here is.

 

If filling EOS & COS right when your other non-immigrant visa expires or right before it expires confers any benefit, everyone on B-2 would be doing it. I mean, if by 6 months I don't wanna leave, I'll just file, chill and cite COVID policy.

 

During COVID, as someone has mentioned, USCIS amended their policy to give "authorized stay upon submission." We do have to agree that this was done to accommodate sluggish COVID times. Common sense should tell us that this is long gone and we cannot keep on milking it. 

 

Now, EOS or COS is fine. However, it should be done early so that you get a decision within your current authorized stay.

[Timona 4,208]

1 minute ago, sammyiee said:

I spoke with the lawyers on this, I would not have a "lawful status" but I will have an "authorized stay" and there's a difference between these two. Nevertheless, it comes with risks.

 

And by the time USCIS adjudicates on your case, 2 things might happen:

 

1. They'll see that your I-94 already ended and as such, deny your case immediately. 

2. They'll extend it BUT for only 6 months. Now, if they're getting to your case anywhere after 6 months, then that extension will do you no good. 

 

Best of luck. 

☘

[sammyiee 1]

6 minutes ago, Timona said:

 

Exactly. I even don't know what the argument here is.

 

If filling EOS & COS right when your other non-immigrant visa expires or right before it expires confers any benefit, everyone on B-2 would be doing it. I mean, if by 6 months I don't wanna leave, I'll just file, chill and cite COVID policy.

 

During COVID, as someone has mentioned, USCIS amended their policy to give "authorized stay upon submission." We do have to agree that this was done to accommodate sluggish COVID times. Common sense should tell us that this is long gone and we cannot keep on milking it. 

 

Now, EOS or COS is fine. However, it should be done early so that you get a decision within your current authorized stay.

No you wouldn't need a decision made to continue staying. And everyone wouldn't be doing it because its risky. I don't think this is a Covid related adjustment, during Covid, the argument would have been more valid with the closures and everything but now USCIS is able to question as to why I decided to change my status so yes as I said, a lot of risk involved. I am stressed already but I felt this was the only choice considering my situation. Not the best decision I know but I had to do what I had to do.

[Crazy Cat 41,985]

29 minutes ago, sammyiee said:

I spoke with the lawyers on this, I would not have a "lawful status" but I will have an "authorized stay" and there's a difference between these two. Nevertheless, it comes with risks.

LOL!  I know the difference between the two.  A submitted I-539 receipt gives you neither.  We see a GREAT deal of attorney misinformation here.  

Edited September 9, 2022 by Crazy Cat