BCIS Clarifies Interpretations of Period of Stay in Determining Unlawful Presence

The Bureau of Citizenship and Immigration Services (BCIS) has seen an increase in multiple filings by alien visitors in cases where these visitors wish to extend stay in the U.S. while petitioning for a change of status. These aliens wish to stay in the U.S. under “legal status” while waiting for adjudication of an immigration benefits application.

According to BCIS, “some immigration practitioners consider the ‘period of stay authorized by the Attorney General’ to be equivalent to ‘status’.” These practitioners believe that because the alien is in status while the BCIS is adjudicating the alien’s application for an extension of stay (EOS) or change of status (COS), that individual can continuously file for EOS or COS, a strategy that would, more or less, enable the alien to stay in ‘lawful status’.

In an effort to clarify these concerns, the BCIS has issued the following response:

1. Where an alien files a timely EOS or COS application and that application is ultimately denied, the alien can begin to accrue unlawful presence beyond the date of the denial regardless of whether the alien files additional, but untimely, requests for EOS or COS that are awaiting adjudication.

2. An EOS or COS application must be filed within the period during which the alien is in an “authorized status” …. The period during which a timely filed EOS or COS application is pending continues the alien’s period of authorized stay in the United States (allowing the alien to avoid accruing unlawful presence), but does not extend the alien’s period of “authorized status”.

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