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Mothupally

Change of status from H1B to B2

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Hi there,

My VISA   (6years) has expired on Oct 4th 2018 and prior to that my employer filed a i-539 (change of status to B2)  on Sep 26th 2018. This is pending with USCIS for a decision. We have a new baby born on Sep 4th and therefore has to stay in the country till we get his Passport and OCI. Is it legal to stay in the country with my current situation and is there anything that I need to be aware of or be prepared with documentation ?

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If you have a COS application pending with a current expired visa status, you can legally stay in the country (you can't work ofcourse). However if the COS application is eventually denied, you will be considered out of status from the date your previous visa expired. Not sure what the current processing times for COS applications are, but they can be 5-6 months. If your COS application is denied and it's been 180 days since your last valid visa expiry and you're in the country, then it's a problem. However, with the recent policy change that went into effect Oct 1, 2018, things have gotten a little muddier. The new policy memo essentially says that incase of a COS denial, if you are even a day out of status, a NTA can be issued to appear before an immigration judge, and you can't leave the country till the proceedings are completed which will further prolong the out of status stay in the US. Here are links from Murthy:

https://www.murthy.com/2018/07/18/uscis-notice-to-appear-memo-could-result-in-harsh-consequences/

https://www.murthy.com/2018/09/26/newsflash-nta-memo-goes-partially-into-effect-monday-oct-1st/

So essentially, it's only a problem if the COS is denied which could be months down the line. If you are planning to leave as soon as the new born's paperwork is sorted ( I'm guessing it shouldn't take very long), it should be ok. Also, make sure you are not on the employer's payroll post Oct 4 and are not working.

 

 

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5 hours ago, Ken7 said:

If your COS application is denied and it's been 180 days since your last valid visa expiry and you're in the country, then it's a problem.

How many days it has been since the status expired makes no difference. One does not accrue "unlawful presence" while a timely-filed, non-frivolous COS or EOS is pending, even if it is eventually denied or abandoned. After a denial, if you are still in the country, "unlawful presence" only starts accruing on the day after the denial. The only immediate consequence to getting COS/EOS denied and you are out of status and still in the country, is that your visa is voided.

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Newacct is right. The problem is that the OP knew full well about the baby maybe 8 months earlier on. Since his 6 years was going to expire anyway they could have planned better. 

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4 hours ago, newacct said:

How many days it has been since the status expired makes no difference. One does not accrue "unlawful presence" while a timely-filed, non-frivolous COS or EOS is pending, even if it is eventually denied or abandoned. After a denial, if you are still in the country, "unlawful presence" only starts accruing on the day after the denial. The only immediate consequence to getting COS/EOS denied and you are out of status and still in the country, is that your visa is voided.

Thanks for clarifying unlawful presence vs out of status. The out of status date would still be from the date of the last visa expiry,  and the issue with the new USCIS memo is that being out of status may initiate NTA.

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16 hours ago, Ken7 said:

Thanks for clarifying unlawful presence vs out of status. The out of status date would still be from the date of the last visa expiry,  and the issue with the new USCIS memo is that being out of status may initiate NTA.

They don't issue NTAs until the 33-day period to file a motion is over after a denial.

Edited by newacct

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