What does “Period of Stay Authorized by the Attorney General” mean in determining “Unlawful Presence”?
When an alien files an application for extension of stay, on time, but the application is denied, the alien becomes out of status after the date of denial. An application for Extension of Stay (EOS) or Change of Status (COS) filed after an alien’s authorized period of admission has expired does not extend the period in which an alien is in status.
Many people, recently, have attempted to stay within the U.S. without being in “unlawful presence” by filing additional applications for extension of stay or change of status while an already file application is pending, i.e., awaiting a decision on the first application. These secondary applications are filed based on the premise that the “period of stay authorized by the attorney general” is the same thing a status, so that an alien is in “status” and not in the U.S. unlawfully, while the application is processing, and therefore an alien can continuously file an EOS or COS and thereby avoid being in unlawful presence in the U.S. Unfortunately, this is not the case. Rather, when an alien files an application for EOS or COS on time, but that is denied, they can begin to be in unlawful presence after the date of the denial, even if they have filed additional, but late, requests for EOS or COS that are pending. Filing such a request on time, however, does continue the alien’s period of authorized stay in the U.S., which allows them to avoid unlawful presence, but does not extend the alien’s period of “authorized status.”
“Authorized status”, or “authorized period of admission”, is distinct from a “period of stay authorized by the Attorney General”. The authorized status, or authorized period of admission is the length for which the alien’s visa is valid; the “period of stay” is determined by the dates on the alien’s I-94 arrival/departure record or by an approved EOS or COS application and an alien is “unlawfully present” if they remain in the U.S. beyond the “period of stay authorized by the Attorney General. An alien is “in status” if they are within the period of authorized admission.
Thus, an alien will be within a period of stay authorized by the Attorney General, and not out of status while an EOS or COS is pending, if the alien filed the application before the date of departure on their I-94. An extension of stay or change of status may be approved if the applicant maintained – that is, the alien is within the period of authorized admission – their status before the application was filed. If an alien is out of status, i.e., in the U.S. beyond the stated date of authorized admission, the application will be denied. See 8 C.F.R. 214.2(c)(4).
For example, consider the following: On 3/16/14, an employer timely files and I-129 and an H-1B. After the filing, the I-94 arrival/departure record for the B-2 alien expires, and the alien becomes out of status. On 9/10/14, the B-2 alien files an untimely (because it is after the expiration of the I-94) I-539 for an extension of stay. On 12/7/14, the initial, timely filed COS and H-1B are denied; the same employer then, on 1/11/15 files a second I-129 for COS and H-1B. On 2/8/15, the untimely I-539 is denied because it was filed late. Then, the second H-1B is approved, but the COS is denied because the alien was out of status at the time of filing.
In that case, the alien’s initial period of admission, determined by the I-94, expired prior to 9/10/14. Because the I-94 expired, the alien was out of status but was considered to be in a period of stay authorized by the Attorney General, because of the pending, timely filed COS application. The second application was denied because it was filed after the original B-2 expired, and so it was untimely. The alien became unlawfully present in the U.S. when the original change of status application was denied, 12/7/14.