Every year more than quarter of a million requests to extend a stay are submitted to USCIS, the agency in charge of processing immigration cases. Some reasons to request the extension of a non-immigrant visa may include airport closures, or emergency medical procedures.
But what happens if the request gets denied and you exceed your visa stay in the United States? Documented reached out to USCIS, CBP, and immigration experts — here is what they had to say.
In short:
- USCIS recommends an extension (I-539) to be submitted at least 45 days before the expiration date of your I-94 travel authorization.
- Consider your options. The average processing time for form I-539 can take up to 29.8 months. This is more than 2 years.
- You will accrue unlawful presence as soon as your authorized stay (or period) expires.
- If your extension/change is denied, you will be given time to depart the United States and the stay won’t be considered an overstay.
- The CBP officer at the port of entry has the final determination for admissibility.
This article, along with the quotes mentioned, are solely for informational purposes only and does not constitute legal advice. For legal assistance see our list of Pro-bono Lawyers in New York.
Why should you request a visa extension?
An extension to stay (Form I-539 Application to Extend/Change Nonimmigrant Status) is required to remain in the United States past the expiration date of your non-immigrant visa. This is so that someone, who needs to stay in the US, can avoid accruing unlawful stay due to overstaying their visa — which can have repercussions if someone plans to return to the states.
USCIS recommends form I-539 to be filed at least 45 days before the expiration date of their authorized stay. However, processing the extension can take anywhere from 6.9 to 29.8 months, according to their case processing times.
“You will need to make the calculation of whether or not you want to risk overstaying,” says Deborah Lee, Deputy Attorney-in-Charge within the Immigration Law Unit of the Legal Aid Society. She adds that because the processing times are long, sometimes it does not make sense to request an extension.
If a person overstays more than 180 days but less than a year, that person will be barred from reentering the country for three years. If the person stayed for more than a year, the bar is ten years.
What happens if I get denied?
During the pandemic the closure of airports worldwide forced individuals to request visa extensions. Documented received hundreds of messages via the WhatsApp Channel as well. However, as airports reopened, many were able to travel back to their country of origin, and then were left with the question: What happens if they denied my request after I already left?
Lee explains that it is complex, and it depends on case by case. But hypothetically, if someone had filed their form before their authorized stay expired, and left the country before 120 days, then the 3 or 10 year bars would not apply to them.
A CBP spokesperson also confirmed, adding that their stay while their I-539 application is pending is considered lawful.
“That is if they have not violated the terms of their temporary visa,” Lee said, expanding that if someone worked without work authorization, for example, it could create a problem when they ask for a new visa with the U.S. Department of State.
The CBP spokesperson also told Documented that in accordance with Section 222(g)(2) of the Immigration and Nationality Act, a nonimmigrant visa is considered invalid if someone has remained in the states longer than the authorized time.
They added that “prior to any future travel to the United States the individual must visit the US Embassy/Consular Office and discuss the status of the nonimmigrant visa.”
Also read: How to Get a Green Card as an Undocumented Immigrant in the United States
