By Radhika Balaji, Associate Attorney.
It is close to a year since the first lockdowns and travel restrictions due to the COVID-19 pandemic was issued. Although there had been a remarkable pace in which the COVID-19 vaccines have been developed, there is still long way before everyone can receive it!
With a climbing surge in the number of cases due to newer strains of virus and increasing travel restrictions, many who are visiting the US on a B-2 (visa), particularly elderly family members are faced with a dilemma to risk traveling back to their home countries.
This article shines some light on the existing regulations for B-2 extensions (which sadly have not changed despite COVID-19) and impact of overstay and possible options to consider should you decide to remain beyond a year from entry in B-2 visa.
Briefly,
- The governing B visa regulations do not permit stays beyond one year. Any periods beyond that are not clearly supported by the current regulations.
- If you are eligible for Adjustment of Status (AOS) through a qualifying relationship with your family member, you should consider filing the application before the I-94 expires.
B-2 Extensions Allowed only up to a Year
- Factors for Approving a B-2 extensionGenerally, B-2 extension requests are approved in six month increments for up to a year and the factors that USCIS applies for approving a B-2 extension are:
– Specific reason for remaining in the U.S.
– Maintenance of ties back to Home Country (Personal, Economic, Employment, Property)
– Prior actions / history - Maximum Stay of 1 year in B-visaThe rules governing B visa admission period is available at 8 CFR 214.2(b)(1), which states in relevant part that:“Any B-1 visitor for business or B-2 visitor for pleasure may be admitted for not more than one year and may be granted extensions of temporary stay in increments of not more than six months each.”If you have already been in the US for 1 whole year since your most recent entry on a B-2 visa, you are likely to be denied an extension beyond that time. While there may be some anecdotal references of 2nd extensions on B-2 being approved, the regulations are quite clear that stays beyond one year are not allowed.
- Unlawful Presence and Overstay
If someone is in the U.S. unauthorized, they may be deemed as accruing “unlawful presence” (ULP) which can have an impact on their future entries to the U.S.
| ULP < 180 days | = no bar |
| 180 days < ULP < 1 year | = 3 year bar |
| 1 year < ULP | = 10 year bar |
While it is understandable that one may want to stay in the US due to COVID-19 travel risks, any stay beyond the 1 year on B-2 visa even if a timely extension is filed is likely to result in a denial impacting future visits to the U.S. on the B visa. Concerns that future trips will truly be temporary can be raised when one seeks a renewal of the B visa at the Consulate, or when one returns to the U.S. at the airport by the Customs and Border Patrol (CBP) agents.
Alternative Options beyond the 1-year mark on B-2 visa
A. Adjustment of Status (AOS)
If you have a family member who can sponsor a green card on your behalf your so you can adjust status in the US to a permanent resident, you may be able to continue to remain in the US. Typically, if you have an immediate relative (spouse, child or parent) who is a US Citizen or a spouse who is a green card holder, they may be able to file a petition for alien relation which will allow you to concurrently file an application to adjust status to a permanent resident. While immediate relatives of US citizens may be able to pursue adjustment of status even if they fall out of status or not in an authorized stay (individual situations should be evaluated with legal counsel)[1] there are certain safeguards for timely filing. Below is a scenario:
B-2 entry – Nov 1, 2020
I-94 expires – May 1, 2021
B-2 extension filed – April 1, 2021
B-2 extension requested until – October 31, 2021
- Filing AOS prior to October 31, 2021 and the pending B-2 extension is approved.
The pending B-2 extension allows one to be in an unauthorized stay until October 31, 2021 without accruing unlawful presence. If the AOS is filed prior to October 31, 2021 and the B-2 extension is also approved, one can continue the AOS processing without a concern of accruing ULP. The B-2 extension then acts as a “bridge petition” which allows one to travel outside of the U.S. under this circumstance using an Advance Parole (which is an interim benefit of the AOS application).Please note that the B-2 requires non-immigrant intent at the time of filing. This includes an extension of status. The above scenario envisions a foreign national who has changed their mind after filing the B-2 extension and decided to seek an adjustment of status. - Filing AOS prior to October 31, 2021 and the B-2 extension is denied.
The timely filed B-2 extension allows one to be in an unauthorized stay until October 31, 2021 or until a denial (whichever occurs earlier) without accruing unlawful presence. However, if the B-2 extension is denied, then the “bridge” is broken. And while one can continue with the AOS processing, in the case of an immediate relative of a US citizen, without issue, traveling on Advance Parole is not recommended. - Filing AOS after October 31, 2021
If one files after October 31, 2021, there is no bridge petition. One can still pursue adjustment of status, in the case of an immediate relative of a US citizen, but cannot travel until the Green Card is issued.
If the Green Card is denied, the ULP will be deemed to have accrued dating back to May 2, 2021 since the bridge petition was not a timely filed extension request.
B. Consular Processing
One can pursue the green card (initially filed as an AOS) through the Consulate outside the US after the I-130 is approved. One will have to file a Form I-824, application requesting the conversion of the AOS to Consular Processing. The typical processing time for the I-824 is about a year. Once the Form I-824 is approved, the case is moved to the National Visa Center for the immigrant visa processing. From here it could typically take about 3-4 months for an interview to be scheduled at the US Consulate outside the US (or longer given delays especially due to COVID-19).
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[1] The same is not true for spouses of Lawful Permanent Residents (Green Card holder). Further, if you are out of status or unlawfully present, we highly recommend seeking legal counsel before pursuing the Green Card to assess your risks.
Disclaimer: This is a general advisory and not the basis for specific legal advice. The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.
Consultation: Please contact ImmiCore Law today to schedule a consultation for your individual concerns.
