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I-539 Extend Your Nonimmigrant Stay in the United States Frequently Asked Questions

1. Am I eligible to file I-539?

  • You may be eligible to apply for an extension of your authorized period of stay if:

  • You were lawfully admitted into the United States with a nonimmigrant visa;

  • Your nonimmigrant visa status remains valid; 

  • You have not committed any crimes that make you ineligible for a visa;You have not violated the conditions of your admission; and

  • Your passport is valid and will remain valid for the duration of your stay.

Check the date in the lower right corner of your Form I-94, Arrival-Departure Record, to determine the date your authorized stay expires. USCIS recommend that you apply to extend your stay at least 45 days before your authorized stay expires.

If your nonimmigrant status is based on the fact that you are a family member or dependent of an individual who has already been granted nonimmigrant status, then you must file your request for extension of stay while that individual continues to maintain a valid nonimmigrant status. Family members and dependents are limited to the same period of authorized stay as the principal nonimmigrant.

2. Can I get an extension if my authorized stay or visa has expired or is about to expire?

  • If your stay as shown on your Form I-94, Arrival Departure Record, has already expired, while anyone can file an application, USCIS usually will not grant an extension of stay.

  • If you believe compelling unforeseen circumstances beyond your control prevented you from filing on time, please explain your unforeseen circumstances in your application and include any documents to support your claim.

  • If your stay as show on your Form I-94 is about to expire, make sure you file your application in time for USCIS to receive it before your status expires.

  • If you are concerned about your visa expiring, remember it simply lets you come to the United States to apply to enter. Your visa doesn’t control the length of your stay. The period for which you can stay was determined when you were admitted to the United States. You will usually find that information on the Form I-94 that was issued to you when you were admitted.

3. When should I file Form I-539 and how long will it take to process my application?

USCIS processing times can vary. You may check USCIS website, for their current processing times. USCIS suggest to file at least 45 days before your stay expires.

4. 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.

Although you are out of status, you may be permitted, depending on your classification, to continue your previously authorized employment for a maximum period of 240 days while your extension application is pending if USCIS receives your application before your Form I-94 expires, and you have not violated the terms of your nonimmigrant status. You may be required to stop working immediately when the first of the following events occurs:

  • 240 days elapses from the date your I-94 expires; or

  • USCIS has made a final decision denying your extension application.

If your application for an extension of stay is approved, the approval will relate back to the date your Form I-94 expired, and your status while your application is pending will then be considered to have been lawful.

If your application is denied, you may be required to cease employment 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).

Resource: USICS


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