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I would like to know what are the options that can someone consider to resolve the problem if he is under the following circumstances:

Since the international med school students are not too many in the US so their immigration status is a little ambiguous. Actually, I know someone who is in med school but he is done with the coursework and his F-1 visa that he has been using since his undergrad has expired. Meanwhile he had to take the step examination so the school advised him to apply for a B1-B2 tourist visa.

He got the tourist visa but right after the examination the time was too short to exit the country and apply for a new J-1 visa in order to start a required rotation in a hospital. So he applied for both a change of status and i-94 extension while staying in the US.

The extension was accepted however they gave him a short one and it's expiring soon, whereas the change of status application is still pending..

According to the gov websites if someone exits the country the application will be automatically denied plus the rotation program is very intensive and a student can't take permission to leave..

So I am wondering what can someone do in such situation knowing that the application is pending since more than 7 months and whenever he calls the uscis they tell him that they are experiencing a large number of applications and currently they are processing applications from February and March 2015..

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    The application is not denied if he leaves; it's just abandoned, because the traveler has left the country and no longer has any immigration status whatsoever. He can still apply for a new B1/B2 visa at a US consulate. More to the point, however, as long as there is a pending change of status application, it is not necessary to leave the country.
    – phoog
    May 23, 2016 at 22:33
  • @phoog But his stay (i-94) which has been extended is expiring soon and if he stays after that he is going to be considered as out of status.
    – user2987
    May 23, 2016 at 22:35
  • I am working on an answer with references. I'll post it in a couple of minutes.
    – phoog
    May 23, 2016 at 22:35
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    Why did he apply for Extension of Status if he was also applying for Change of Status? That doesn't make sense. They might be confused by two I-539 applications.
    – user102008
    May 24, 2016 at 0:11

1 Answer 1

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As long as there is a pending change of status application, it is not necessary to leave the country. See https://www.uscis.gov/sites/default/files/USCIS/Resources/C2en.pdf (emphasis added):

What if I file for change of status on time but USCIS does not make a decision before my I-94 expires?

Your lawful nonimmigrant status ends and you are out of status when your Form I-94 expires, even if you have timely applied to change your nonimmigrant status. Generally, as a matter of discretion, USCIS will defer any removal proceedings until after the petition is adjudicated and USCIS decides your change of nonimmigrant status request. Nevertheless, DHS may bring a removal proceeding against you, even if you have an application for change of status pending.

Even though you are not actually in a lawful nonimmigrant status, you do not accrue “unlawful presence” for purposes of inadmissibility under section 212(a)(9)(B) of the Act, while your change of status application is pending if it was filed prior to the expiration of your Form I-94.

If your application for a change of status is approved, the change of status will relate back to the date your Form I-94 expired, and your status during the pendency of your application will then be considered to have been lawful.

If your application is denied, you may be required to depart the United States immediately.

So yes, the student would be out of status after the I-94 expires, but would not be be "unlawfully present."

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  • Thanks a lot for your answer. I am also wondering does he has to start counting 240 days from his old expired i-94 or from when it expires the new extended one.. I am also wondering can he still apply for another i-94 extension..
    – user2987
    May 23, 2016 at 22:51
  • @user2987 If he has a change of status pending, I don't see that extending the I-94 would be of any use. Where does the 240 day figure come from?
    – phoog
    May 23, 2016 at 22:53
  • In the link that you provided it says "You may be required to stop working immediately when the first of the following events occurs: • 240 days elapses from the date your I-94 expires; or • USCIS has made a final decision denying your extension application."
    – user2987
    May 23, 2016 at 22:55
  • @user2987 I don't see that in the PDF document, where do you see it?
    – phoog
    May 23, 2016 at 22:59
  • Sorry it's not in the link you posted it's here uscis.gov/sites/default/files/USCIS/Resources/C1en.pdf
    – user2987
    May 23, 2016 at 23:01

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