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U.S. Tourists: Don’t Just Blow Your Deadline for Leaving USA

Updated: Aug 11, 2023

If a nonimmigrant or "alien" (meaning "foreigner") overstays the period of authorized stay in the U.S., the visa on which he entered the U.S. will be automatically void under U.S. law, specifically INA 222(g).

Additionally, once an overstay begins, the nonimmigrant begins accruing "Unlawful Presence" in the U.S. If you accrue more than six months but less than a year of Unlawful Presence, you will be barred from returning to the U.S. for three years. Accrue a year or more of Unlawful Presence and then depart the U.S., you'll be barred from returning for ten years. Yikes.

Accordingly, if you need to extend your stay, be sure to request an extension before your stay expires. Ideally, you should submit your request at least three months in advance. Requesting an extension will "toll", meaning "delay", the accruing of any unlawful presence. This is memorialized in a USCIS memorandum by Donald Neufeld, Acting Associate Director, Domestic Operations Directorate, on May 6, 2009. The memo expressly states that tolling applies for both the 3-year and 10-year bars. The following language appears in the memo:

Nonimmigrants with Pending Requests for Extension of Status (EOS) or Change of Status (COS)("Tolling").

Pursuant to section 212(a)(9)(8)(iv) of the Act, a nonimmigrant, who has filed a timely request for extension of nonimmigrant status (EOS) or change of nonimmigrant status (COS), is protected from accruing unlawful presence during the pendency of the application for up to 120 days (the accrual of unlawful presence is "tolled").

Section 212(a)(9)(B)(iv) of the Act is only applicable to the three-year bar of section 212(a)(9)(8)(i)(l) of the Act, and is also referred to as the "tolling-provision."

However, unlawful presence for purposes of the 3-year bar will only be tolled, if

1) the alien has been lawfully admitted or paroled into the United States, and

2) the application for EOS or COS is timely filed, and not frivolous, and

3) the alien does not engage and/or has not been engaging in unauthorized employment. See section 212(a)(9)(B)(iv) of the Act.

By policy, USCIS has extended the 120-day statutory tolling period to cover the entire period during which an application for EOS or COS is pending; this extension is valid for the 3-year and the 10-year bars. For a more detailed description of this extension and guidance concerning whether unlawful presence accrues after the 120-day period specified by the statute, please see section 3(C) below.

The bottom line is that you can rest assured that you will not accrue Unlawful Presence so long as your paper extension application arrives at USCIS before the deadline! Give your shipping courier additional time in case weather delays your submission by a few days.

Prospective International Students, Beware!

If you decide to study while you’re visiting the U.S. as a tourist, don’t expect your application to be approved in less than 4 months. It may be better for you to return to your home country and obtain a student visa from the U.S. consulate there. However, many people change their status to become F-1 students while in the U.S. without an issue. If you speak with a DHS Designated School Official at a small school, be sure that the person is thoroughly familiar with U.S. immigration law as not all of them are.

Don't Worry if Application Isn't Approved and You Need to Leave the U.S.

Even if your extension application is not approved before you have to return to your home country, the timely filing of an extension application would prevent you from having major issues when you next apply for a U.S. tourist visa and attempt to re-enter the U.S.A. The same memorandum cited above addresses this issue. The memorandum states as follows:

Nonimmigrants with Pending Requests for Extension of Status (EOS) or Change of Status (COS) Who Depart the United States During the Pendency.

Departure from the United States while a request for EOS or COS is pending, does not subject an alien to the 3-year, 10-year, or permanent bar, if he or she departs after the expiration of Form 1-94, Arrival/Departure Record unless the application was frivolous, untimely, or the individual had worked without authorization. D/S nonimmigrants, who depart the United States while an application for COS or EOS is pending, generally do not trigger the 3-year, 10-year, or permanent bar under sections 212(a)(9)(B)(i) or 212{a)(9)(C)(i)(l) of the Act.

Speak to a U.S. immigration lawyer about the best plan for you. Photo by ConvertKit on Unsplash #B1 #B2 #F1 #Tourist #TouristVisa #VisitorVisa #Immigration #ImmigrationAttorney #USVIsa #Visa #CBP #USCIS #USImmigration #NIV #ChangeOfStatus #COS #EOS #ExtensionOfStatus

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