Filing AOS while pending L1A extension

[Akita_]

Dear members,

My I-94 has already expired and extension was filed on time by my employer.  Based on my research, I think that I can file I-485 with  visa extension pending receipt. Would my AOS (I-485) application will get denied automatically if my visa extension is denied? 

Regards

 

[pontevecchio]

When did the I94 expire?

[Akita_]

My i-94 has expired on 10-10-2018. Still within 180 days.

[pontevecchio]

One has 120 days of "tolling" which is applied from the time you were in status to the time you apply for AOS. If you apply within this 120 day period, then you will be allowed to stay awaiting AOS even if the extension is subsequently denied.

[Akita_]

Thank you @pontevecchio.  I wasn't aware of 120 days rule, thought it is 180 days based on https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter8.html. Do you have a link for the guideline?

Regards

 

[newacct]

2 hours ago, pontevecchio said:

One has 120 days of "tolling" which is applied from the time you were in status to the time you apply for AOS. If you apply within this 120 day period, then you will be allowed to stay awaiting AOS even if the extension is subsequently denied.

The only 120 day period is the statutory amount of time one is "tolled" from accruing "unlawful presence" after one's I-94 expires during a timely-filed, non-frivolous Change of Status or Extension of Status application. That is not relevant because:

1. The 120-day statutory period has been extended to an unlimited period (i.e. one does not accrue "unlawful presence" after one's I-94 expires for the entire duration of a timely-filed, non-frivolous Change of Status or Extension of Status application, no matter how long it takes).

2. "Unlawful presence" does not matter for AOS. Being out of status (currently or ever in the past) bars one from AOS (unless one is in the Immediate Relative category, or in an employment-based category and INA 245(k) applies) even if one has not accrued any "unlawful presence".

[newacct]

2 hours ago, Akita_ said:

Thank you @pontevecchio.  I wasn't aware of 120 days rule, thought it is 180 days based on https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter8.html. Do you have a link for the guideline?

Regards

 

Yes, INA 245(k) says you are not subject to the bar to AOS for being out of status or unlawful employment as long as you have not been out of status or working illegally for more than 180 days since your most recent admission. Since you have not been out of status for 180 days, if you file I-485 now, it will be valid regardless of the result of the Extension of Status application. (i.e. Even if the Extension of Status is denied, you would still have been out of status for less than 180 days since your most recent admission until you filed I-485. So assuming you did not work illegally, INA 245(k) applies. Therefore, it is not necessary to wait for the Extension of Status application to adjudicate your I-485.)

[pontevecchio]

The 120 days tolling is separate from the subject of the other posts. Since I do not believe you will file AOS without a lawyers input, you should run this by him. My AOS was based on tolling for 120 days after my Tourist visa expired in 1996. Hence I have personal experience of using this to my advantage.

Unlawful presence makes one inadmissible for AOS. The law states that the status of an AOS applicant who loses his current status because his I94 expired can still apply for AOS if his PD is current and the AOS is filed within 120 days of the expiry of the I94 as the law makes a presumption of tolling the status for 120 days in such cases.

[newacct]

1 hour ago, pontevecchio said:

The law states that the status of an AOS applicant who loses his current status because his I94 expired can still apply for AOS if his PD is current and the AOS is filed within 120 days of the expiry of the I94 as the law makes a presumption of tolling the status for 120 days in such cases.

No it doesn't. Pending application is not status. Lack of "unlawful presence" is also not status. Unless you are exempted from the bar to AOS for being out of status (e.g. Immediate Relatives, and employment-based immigrants for whom 245(k) applies), you must be in status to be eligible for AOS. A pending COS/EOS could potentially later make you retroactively in status if it is approved. In that case, you can still file I-485 when the COS/EOS is pending, but they will have to defer processing of the I-485 until COS/EOS is approved; and if the COS/EOS is denied they will also deny the I-485. This is described in Volume 7, Part B, Chapter 3, Section E of the USCIS Policy Manual.

In this case, this is all irrelevant to the OP as INA 245(k) applies as long as they have not been out of status or working illegally for 180 days from the most recent admission, so they are not subject to the bar to AOS for being out of status.

[Akita_]

@newacct Thank you for our inputs