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On a regular basis we get calls with questions about filings extensions of time for visitor’s visas. In today’s blog post, we cover the pros and cons of asking for more time in the U.S. Read on to learn what makes a good extension request and what will lead to a denial.
The Rules on Filing Extensions
First, let’s go over the rules. If you entered the U.S. using the ESTA or Visa Waiver program, you cannot extend your time in the U.S. There are some very few medical/emergency situations where you might be able to ask for more time. But generally, if you did not need a visa to enter the U.S. as a tourist, you cannot file an extension. Remember, a border crossing card (BCC) is a visa. Mexican citizens are the only people who currently use these cards.
So, the people who can file extensions are those who enter with a B1/B2 visitor for business or pleasure visa. People call these “tourist” visas. The law tells U.S. Customs & Border Patrol (CBP) officials that they are supposed to allow visitors six (6) months to visit the U.S. if you passport is valid for this amount of time. CBP is allowed to give less if they believe there is “good cause” for doing so. You can read the rule here in section called “visitors.”
Next, you have to file your extension request when you are still in legal status. This means before the expiration date of your Form I-94 or visa stamp. For example, if you have permission to be in the U.S. until September 14, 2018, then the application must arrive no later than September 14, 2018. It also means that you have not violated your status. For example, working without permission or in some cases, enrolling in school.
The correct form to ask for more time is called Form I-539 Application to Extend/Change Nonimmigrant Status. You can find it here. Make sure to send the right fee and follow the checklist provided by USCIS. If you are filing for yourself and family members, make sure everyone will be eligible for more time. For example, does everyone have a passport valid for the extra time requested? Remember also that the max amount of extra time you can ask for is six months.
Why Extensions Get Denied
The top 3 reasons extension get denied are as follows:
- Late Filed: Simply put, the applications do not arrive on time. One tip for our readers is to always mail your application with a tracking service. This way you can confirm delivery. In some situations, you can ask for an exception to filing late.
- Cannot Prove Visit is Truly Temporary: USCIS wants guarantees that you will leave the U.S. at the end of the extension period. They need to see a plan in place for your return. This requires sending documentation of your home abroad, employment overseas, and any other steps you are taking to return home.
- Cannot Prove Financial Funds to Support Extra Time: As a visitor, you cannot legally work in the U.S. Therefore, USCIS will deny any application where you cannot prove how your will support yourself or your family in the U.S. This is where showing savings or having a family member give proof that they will cover your costs is important.
Denial of Extensions
At this point, it is important to note what happens after you file. For most people, they will not get a decision before their original permission date passes. The law says that during the first 120 days that your extension is pending, you are in a period of authorized stay. Meaning, you are still here with permission. After the 120 days, USCIS by policy will still let you be in the U.S. while you wait for a decision.
If you leave before USCIS makes a decision on your extension request, they will deny the application. However, as long it was timely filed and not frivolously filed, it should not affect your ability to return in the future.
The big problem is if USCIS denies your application. The day after the denial, you lose the legal status and starting picking up what’s called “unlawful presence.” If you have six months worth of unlawful presence in the U.S. you cannot enter the U.S. until you leave and wait 3 years. If you have a year of unlawful presence, you must leave and wait 10 years before returning. The harshest consequence is for someone whose application is denied because it was late or frivolously filed. USCIS will consider the entire time you were waiting on a decision after your permission date passed to be unlawful presence.
Given that there is no grace period, many visitors will correctly decide that an extension request is not worth the risk. From our point of view, an extension should only be filed for a strong and compelling reasons. For example, the need to complete necessary medical care in the U.S. Also, it should be filed with a lot of supporting evidence to try to avoid a denial. Even a request to get more medical care needs to show how all the hospital bills will be paid.
Proceed with caution on extension requests. They may seem simple but are in fact full of hidden dangers. If you or a loved one needs more time in the U.S., consider speaking with one of our attorneys to protect yourselves from a future denial.