IndiaPost.com - Resuscitating non-immigrant visa status in the US

The general rule is that one can only apply for a change or extension of non-immigrant visa status while the applicant is still in status. For example, if an individual is admitted into the US in business (B-1) visa status, which is valid till March 30, and his or her business purpose will not be accomplished prior to March 30, the extension application must be filed on or before that date.

As a result of an emergency hospitalization, he or she might not be able to file the application before the B-1 status expires. Fortunately, a little known regulation allows those whose non-immigrant visa status has lapsed to still file for an extension due to extraordinary circumstances beyond their control.

Section 214.1(c) (4) 8 Code of Federal Regulations Section 214.1(c) (4) provides: An extension of stay may not be approved for an applicant who failed to maintain the previously accorded status or where such status expired before the application or petition was filed, except that failure to file before the period of previously authorized status expired may be excused in the discretion of the Service and without separate application, with any extension granted from the date the previously authorized stay expired, where it is demonstrated at the time of filing that: (i) The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances; (ii) The alien has not otherwise violated his or her nonimmigrant status; (iii) The alien remains a bona fide nonimmigrant; and (iv) The alien is not the subject of deportation proceedings under section 242 of the Act (prior to April 1, 1997) or removal proceedings under section 240 of the Act. A parallel provision, 8 CFR Section 248.1(b), excuses individuals who are filing untimely applications for change of status. Thus, if the individual in the earlier example was applying for a change to student or F-1 status, he or she would invoke Section 248.1(b) instead of 214.1(c) (4).

Example of the H-4 Status who failed to timely file an extension: There are many situations when individuals unwittingly find themselves out of status. The reasons could be less extenuating than an emergency. Take the example of the "after acquired" spouse on the H-4 visa. I have termed this spouse "after acquired" because the principal H-1B visa holder marries her after he has already entered the US in H-1B status, and the spouse enters subsequently in H-4 status after the marriage.

At the time of applying for the H-1B status extension, the employer has no record of this spouse on the H-4 visa and does not include the H-4 extension request along with the H-1B extension request. Seven months after the expiration of the H-4 status, it is belatedly discovered that the extension request was not timely filed with the principal H-1B employee's extension request. Realizing that she is out of status, the H-4 will intuitively ask whether it is possible to depart the US and apply for a new H-4 visa stamp at the US Consulate in the home country.

Upon successfully obtaining the new H-4 visa in the passport, would it not be possible to re-enter the US and be admitted in H-4 status? This might have been the case if the failure to file timely was discovered before 180 days from the expiration of the H-4 status. In our example, unfortunately, the lapse was discovered after 180 days from the expiration, and this individual has been snared by Section 212(a) (9) (B) of the Immigration and Nationality Act (Act).

Section 212(a) (9) (B) (i) (I) bars any individual from re-entering the US for a period of three years if he or she has been "unlawfully present" in the US for a period of more than 180 days but less than one year. The companion provision, Section 212(a) (9) (B) (i) (II), bars an individual from re-entering the US for a period of ten years if he or she has been "unlawfully present" for one year or more.

The H-4 spouse, in our example, began to accrue unlawful presence from the date of the expiration of the H-4 status, as reflected in the Form I-94 document. Since the lapse was discovered after seven months from the expiration of the H-4 status, more than 180 days but less than 1 year of unlawful presence has accrued in the US. Thus, upon departure, this person will not be able to reenter for a period of three years even if the US consul is inclined to issue the H-4 visa stamp.

(To be continued