If you have applied for an extension of stay (EOS) or change of status (COS), you may wonder what happens if your current nonimmigrant status expires before USCIS makes a decision.
Understanding the difference between lawful immigration status and a period of authorized stay is important, especially before making travel plans.
What does a pending application mean?
A timely filed, nonfrivolous EOS or COS application generally prevents unlawful presence from accruing while it remains pending, provided applicable requirements are met, including restrictions on unauthorized employment.
However, that protection does not itself extend or grant lawful nonimmigrant status. USCIS explains that a pending application does not automatically protect someone from removal proceedings after their existing status expires. If USCIS approves the application, the approval may retroactively cover the period after the prior status expired.
Being out of status and accruing unlawful presence are different legal concepts. Your circumstances and immigration history determine how these rules apply to you.
What should you do before traveling?
If your current status has expired and your EOS or COS application remains pending, consult your immigration attorney before making travel plans, including domestic flights.
Consider these practical steps:
- Review your records. Check your most recent I-94 and any prior USCIS approval notices with your attorney.
- Keep relevant documents accessible. Receipt notices and filing records document your pending request but do not themselves grant lawful status.
- Discuss international travel separately. Leaving the United States may affect your pending request and ability to return.
- Ask about processing options. Your attorney can determine whether premium processing is available and appropriate for your filing.
A pending application does not mean that enforcement action will occur. The purpose of this reminder is to help you understand your circumstances and obtain individual guidance before traveling.
For questions about this or other immigration and nationality matters, please contact the immigration and nationality lawyers at Nachman, Phulwani, Zimovcak & Batra Law Group, P.C. Email info@visaserve.com or visit www.visaserve.com.
Sources: USCIS Policy Manual (https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-3) and Department of State guidance on unlawful presence (https://fam.state.gov/FAM/09FAM/09FAM030211.html).