Sober

To my understanding SOBER is right, but at the same time once the I-539 is denied, they would consider the person as illegal from the day the I-94 got expired.

Assuming that the person will have really hard time entering the US.

I will first talk about the accruing unlawful presence:

1) http://www.americanlaw.com/unlawfulmemo5.html

"26. The law also exempts periods of unlawful presence accrued by certain

aliens with bona fide asylum applications pending, beneficiaries of family

unity protection, and battered women and children. See

212(a)(9)(B)(iii)(II)-(IV). In addition, 212(a)(9)(B)(iv) suspends the

clock -- for purposes of 9B1 but not/not 9B2 -- for up to 120 days for

aliens with pending applications for extension of stay or change of status,

provided the application has timely filed and non-frivolous and the alien

did not take up unauthorized employment prior to or during the pendency of

the application.

However:

2) In a memorandum dated March 3, 2000, the INS has recently acknowledged the fact that extensions of stay and changes of status exceed the 120 day tolling period mentioned in the INA. It has now designated the entire period during which a timely filed, nonfrivolous application has been pending with the Service as a "period of stay authorized by the Attorney General," provided the alien has not engaged in any unauthorized employment. This period of stay authorized by the Attorney General covers the 120-day tolling period described in INA 212(a)(9)(B)(iv) and continues until the date the Service issues a decision. The Department of State has issued similar guidance in STATE 102274.

Conclusion:

(II) Alien admitted for duration of status, violates status, e.g., by

working without authorization, is out of status for any period of time,

applies for a change of status (COS), which INS denies on the ground that

alien was out of status. Unlawful presence begins to accrue on the date of

the denial. The alien departs voluntarily on his own prior to commencement

of removal proceedings 180 days or less after INS decision: not subject to

9B because alien did not accrue more than 180 days of unlawful presence

after INS decision; however, alien is subject to 222(g).

(III) Same facts as (II) but alien requests voluntary departure, which INS

grants 180 days or less after the denial of COS, and the alien departs

within the time granted: not subject to 9B because alien did not accrue

more than 180 days of unlawful presence; however, alien is subject to

222(g).

Now speaking of 222(g)

1. Original Section 222(g), i.e., Immigration and Nationality Act 222, part g,

says that if you stay beyond the day I-94 expires, your visa gets void.

2. Apparently, there is an Insert, which is more like an internal memo sent

to all the Immigration officials (this is not made available to public although

you can find it on the Internet...see end of email) that amends the original

section 222(g) to the following effect: Your visa will not automatically be

void just because you stayed beyond I-94's expiry. Whether or not the

visa is cancelled is determined as follows:

(a) If you have filed for an extension before I-94 expired and if the

extension is approved, then you get a new I-94. This new I-94

overrides the old one. Thus, there is no penalty for staying beyond

the old I-94's expiry date as Section 222(g) does not apply to you.

(b)If the extension is denied, then you will not get a new I-94. Since

you have stayed beyond old I-94's expiry date, you are subject to

Section 222(g) and thus your visa is void.

http://www.shusterman.com/unlawfulpresenceeoscos.html

Once my I-539 is denied, how much time do I have to leave the country? 180 days from the time the date on my I-94?

Is the date printed on the I-539 denial letter automatically 180 days from the I-94 date, or even earlier?

Can I marry a US citizen (girlfriend of several years) during the period following the denial of my I-539? Is this allowed?

The reason I ask is that I am foreseeing a denial of my I-539 and wondering when I should plan to leave the US. My expectation of the time the I-539 decision will be received, is based on the average processing times that the USCIS website mentions.

How much time do you have to leave once your I-539 is denied? answer: they will specify in the letter: usually it is 30 days from the time of the USCIS decision. You do not want to leave after that because you will then enter into the 3 and 10 year bar period hence, the less than 180 days and more than 180 days.

Can you marry a US citizen? well of course you can. The institution gives you the right to get married right? so yeah you can get married but if you break any law or stay unlawful then this will affect your change of status through a US citizen not unless you submitted a strong explanation on why you stayed beyond the time allowed. The best time for you to get married is right away since you forsee a denial, just make sure not to get married after the time allowed for you in the US. Meaning if you want to do something legal like marriage then try not doing it when you are staying unlawfuly. If you get married then your gf can apply for the I-130 (visa) and I-485 (change of status) at the same time. If she does that then you will be able to lawfully stay until they make a decision. Again, am not a lawyer or have nothing to do with giving legal advise. I am just telling you my opinion that might be wrong, however, it is based on strong experience. I would still advise you to get more info from the USCIS page, as well as the US immigration law website (cant remember which) ..you can also seek free immigration advise for one time from a lawyer. Good luck

well actually since yesterday I've finally found where USCIS gets the stuff they say from. In their "How do I extend my nonimmigrant status in the US" guide, it says the following:

What if I file on time but USCIS doesn’t make a decision

before my I-94 expires?

If we receive your application before your status expires, and if you have not violated the terms of your status and meet the basic

eligibility requirements, you may continue your previously approved

activities in the United States (including previously authorized work) for a maximum period of 240 days, or until the first of the following occurs:

•

We make a decision on your application; or

•

The reason for your requested extension has been

accomplished.

If your application for extension is denied after your previously approved stay has expired and you are still in the United States, you will be considered “out of status” as of the date your original period of stay expired. You must cease employment (if such employment was authorized) 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).

So yeah, you can stay over and you'll be fine, but only if they accept it. because if not, you're visa will be voided and you may have issues even applying for one in the future. Thanks a lot.....

Note: This form is dated 2008. The info I provided is up to date. I have read the new updates concerning the 9 FAM section 222(g) in the immigration laws...and I have also read the latest manual for officers. Please, make sure your info is updated. Search for 222(g) and read the law from a trusted site. So I repeat your visa does NOT become void. Not unless you did not comply to the order of departure.

Thanks

I also have a question regarding the I-539 extension. If your i-94 is about to expire and you are awaiting a response-- USCIS seems to think it is fine to overstay while you wait for a response (but I'm unsure)--What's the final word? Will your visa be voided?? for sure?? Anyone on here who's done this?? What happened?? was your visa voided??

Thanks.

Date: Jan 06 2011

If you applied for an extension of stay (I-539) before it expires and has not committed any kind of violation then you are good to stay until they send you a decision. Once you get the decision: if allowed to stay then np, but if denied then it will specifiy when to leave (Probably 30 days from decision day and not from letter receipt). If you obey this ruling and leave before the 30 days then your B2 visa on your passport will NOT be void and you can reenter. If you tend to abuse this visa and return very fast to the states, then the officer at Point of entry can deny your new I-94 and return you to where you came from. Also, in case of denial make sure when you come back (preferably min. 6 mths if not a year) to have all the docs you used to extend your stay with you..i.e. bank statements, proof of work and the whole nine yards. Be prepared and Good luck. Also to reply "thetwin", note that it sometimes takes around 30 days for USCIS to send you the e-notification, sometimes they experience delays. (N.B. am not a lawyer and have never been to law school but I read a lot and I like to help) Good luck