THE RISKS AND PROBLEMS OF FILING FOR A VISITOR’S EXTENSION
by Michael J. Gurfinkel, Esq.

Dear Atty. Gurfinkel:

I arrived in the US about five months ago on my 10-year multiple visitor’s visa. I was given six months to stay, but would like to extend my visit.

Do you see any problems with applying for an extension?

Very truly yours,

A.M.

 

Dear A.M.:

Long ago, in the “good old days”, before 9\11, it was a relatively simple and easy matter to apply for an extension of stay. Extensions were almost always automatically granted for an additional six months without any problems. But times have changed.

It seems that the new Department of Homeland Security (DHS) does not automatically or easily grant extensions, and if the extension is denied, the visitor could face a wide range of problems and complications.

I have seen denials, where the DHS concluded that the visitor already had enough time to visit, and that the extension request is “merely an attempt by the applicant to simply prolong his\her stay in the United States”.

Often, a denial notice is received months after the alien’s “period of authorized status” had expired. So, with the belated denial, the alien finds himself “out of status”, and subject to a variety of problems:

Existing visa is automatically void.

There is a law that states that if a person overstays his “period of authorized stay”, by even one day, his existing visa is voided, even if it is a 10-year multiple, with years to go before it actually expires. The only way to re-enter the U.S. is to apply for a new visa, at the U.S. Embassy in the alien’s home country.

Moreover, with the U.S. VISIT program, where people are photographed and finger printed before they leave the U.S., “backdating” your arrival into the Philippines to cover up your overstay, is not an option. The U.S. government will know exactly when you left the U.S.

3-10 year bar

Another law states that if an alien overstays his period of authorized stay by more than six months, but less than one year, and then “departs” the U.S., he cannot come back to the U.S. for 3 years. If the alien overstays for more than a year, and then departs, he cannot come back to the U.S. for 10 years. So, once the extension is denied, the person is out of status, and may also encounter problems with the 3/10 year bar.

No filing extension to “buy time” for change of status to working visa.

In the past, many people entered the U.S. on visitor’s visas, were given 6 months, and near the end of their vacation, decided that they liked the U.S. and wanted to stay and apply for a working visa. The problem was that they may not have been in a position to file for change of status, from visitor to worker, before their I-94 expired. So, they would file an extension of the visitor status, asking for another six months. Then, while that extension request was pending, but before a decision was made, they would file for a change of status (to working visa), after the date their I-94 expired.

People would then contend that as long as they filed a change of status (to working visa) while their extension of visitor status was pending, they were still “in status”, even if the change of status to H-1B was filed after their I-94 expired.

However, DHS came out with a memo that stated that this strategy will not work, if the timely filed extension (of visitor status) is later denied. The alien would be considered “out of status” retroactively from the date the alien’s I-94 expired. If the alien is out of status, he cannot obtain “change of status”, and would need to depart the US, and apply for the working visa at the Embassy. Even if the H-1B petition was approved, (despite the denial of the change of status), it does not mean that the person is “guaranteed” that the H-1B visa would be issued at the Embassy. The Consul could still identify issues or problems during the interview that were not apparent to the DHS at the time the petition was approved. So, the alien could get stuck.

As you can see, something as simple as filing for an extension is no longer such a simple matter. There are so many issues, problems, risks, and pitfalls involving even the simplest of matters. Imagine people who have really complex problems, and try to solve those problems on their own! They may not even be aware of all the issues that could arise. Instead, many rely on hearsay, gossip, advice of friends (who are not lawyers), or on policies, procedures, and attitudes that existed before 9\11.

That is why I advise that in this ever-changing environment of immigration laws and policies, it is important that people seek the advice of a reputable attorney, who can explain your situation, and advise you of the risks, benefits, and options.

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