Did You Apply For an Update to Your Legal Status But Your Visa is Expiring?

In this video immigration attorney, Andres Mejer, explains what your status is when you have entered the US on a visitor (or other non-immigration) visa and then apply for a change in status but haven’t yet gotten a decision from USCIS on your application.

Transcript (Transcripción):

Andres Mejer: Now, that you know when your visa expired? U.S Either because it’s on a passport and you know how to check it and you can read it or you can go to see Customs Border Patrol website and you will look at it there. 

Andres Mejer: So, you know, when it expires, what do you do if you filed a petition and your status is about to expire? Now I’ll give you the example. Let’s say I am from Venezuela. I entered as a tourist. I entered in January first. They gave me six months, which would be June 1st. Right. And within that six month period, I filed for asylum or I got married to a U.S. citizen. She’s applying to me or I’m applying to extend it. 

Andres Mejer: Let me give you an example. Say, I fell and broke my arm. I was in a car accident. I was diagnosed with cancer or something else. I have a significant medical reason or my spouse was or my loved one was that I came to visit. They would die. They had a heart attack. And I’m helping them recover. Whatever the reason is, that has to be a significant one. You can apply to extend your status. 

Andres Mejer: Now that means for a temporary period of time. So they gave me six months. The most are going to give you is a year. Another option, you want to change your status from one thing to another. The most important part is you file for something both for your permitted stay expires. Now I filed in March. Here it is, June. My visa is about to expire. What do I do? Well, if I overstay, it’s technically not a problem because I have a valid petition pending. Now, if it’s a fraudulent the application that I just do it to extend it. That’s not going to help you. It has to be legitimate, meaning it has to be a provable at the time, even if it’s ultimately denied. Let’s say the law changes in my asylum application is denied. But I say this the law should protect me as long as it was legitimately filed and I had a callable claim. I’m okay. I will have to leave within usually at 10 days from when I get the denial. unless I’m appealing that decision. 

Andres Mejer: But let me give you an example again, Venezuela. We have a client who entered a couple of years ago as a tourist before his six months were up. And by the way, I used six months as an example. You don’t always get six months. Very important. But he applied for asylum. He was afraid to go back while that petition is pending. He applied for a diversity visa and he was approved. And now he’s going to be receiving his Green Card in the United States, all because he applied timely. This petition was pending. He didn’t the acrew was called unlawful presence. Now, what happens if you don’t file for anything and you overstay and you then leave but want to come back several years later? 

Andres Mejer: Well, that could be a problem. It all depends on how long you stayed and for what reason. Using my example, I’m from Venezuela, which I’m not. I’m from Santiago, Chile, but for purposes of the example. I’m saying I am from Venezuela. I entered January 1st. I was given until June 1st to depart and I leave in December. So that’s five months. So I stayed in the US about one hundred and fifty days beyond what I was given. I’m not automatically barred from returning. But listen, if I if I come back three months later, they’re going to give me a really hard time. If I come back from your four years later, they’ll give me less of a hard time, but they’ll likely still ask me, hey, what happened? Why’d you overstay? And you need to have a reason. Again. I was in a car accident. There was a medical reason. There was whatever it is documented, because without it, you’re going to have a problem. If it was I was charged with a crime and I was defending that case. You’re going to have other problems. Unless, of course, you won. And the charges were dismissed, then that’s a different story. Now, let’s say you overstay over 180 days. So that’s more than six months. 

Andres Mejer: But less than a year when you leave, you won’t be able to come back for three years unless you apply and receive a waiver. So that’s called the three year bar. 

Andres Mejer: You could be subject to that even if you entered illegally. Meaning without permission, if you’re in the United States, either legally and overstay or illegally for more than 180 days and you leave, you can’t come back for three years if you are here for more than a year. Again, it doesn’t matter if you entered legally and then overstayed or illegally. And what’s important then is you were in the United States more than a year without permission, and you leave, your subject to the 10 year bar. 

Andres Mejer: If you later come back within the three years or the 10 years and don’t file a waiver, you are barred for 10 years. No waiver, any circumstances. Doesn’t matter if you’re married to a U.S. citizen, you will have to leave the United States and wait for 10 years for a family based petition. You might be eligible for U visa. You might be eligible for asylum. But Green Card process generally. NO! You’re disqualified because you entered without permission. You stayed here too long. Or again, you entered legally with permission, but overstayed left and then came back again without applying for a waiver. Now let’s say you entered legally. You overstayed by a year. You left and your visa expired. You filed for a new one. And in that application, you asked, have you ever filed before? And you say no, and they don’t catch it. Now you lied. Now you may have another problem in the future when you try to apply for legal status. 

Andres Mejer: So, once again, thank you so much for watching today. Go ahead and share your thoughts in the comments below. And don’t forget to subscribe on YouTube. And I look forward to answering more of your questions next week.