Form I-539: Application to Extend/Change Nonimmigrant Status and Its Implications

What happens to my visa if my I-539 request for an extension of stay is denied, and I leave the U.S. immediately after receiving the decision?

When filing an I-539 application to extend or change your status in the U.S. based on your current visa, the legal implications can be complex if the request is denied. For instance, if you entered the U.S. on a tourist visa (B1/B2) and filed for an extension (Form I-539) while still in valid status (before your I-94 expires), your status remains pending during the processing of your application. However, if your status expires while the request is under review and the application is eventually denied, it’s important to understand the following consequences:

1. Visa cancellation under section 222(g) – If your application is denied, you are considered to be in unlawful status under Section 222(g) of the U.S. Immigration and Nationality Act (INA). This means that your visa is automatically canceled, and you will need to apply for a new visa from your country of nationality or permanent residence.
2. Immediate departure after denial – In theory, if you leave the U.S. immediately upon receiving the denial decision, you might avoid the consequences of Section 222(g). The law operates on a calendar day basis, meaning that if you depart on the same day your application is denied, you may avoid triggering the visa cancellation under this section. However, this scenario is rare, as the timing of departure and the decision are unlikely to coincide perfectly.
3. Notice of intent to deny (NOID) – If you receive a Notice of Intent to Deny (NOID), you can depart the U.S. before the deadline to respond to the notice. By doing so, you will be considered as having left the U.S. while your application was still under review, which may protect you from the effects of Section 222(g) as long as your application was filed in good faith and was not frivolous.

What should I do if I haven’t received a decision on my I-539 extension application, and I need to leave the U.S. after my I-94 has expired?

In this case, no further action is required before leaving the U.S. Your I-539 extension application will be considered abandoned once you depart the country. The primary advantage here is that you do not accrue “unlawful presence” while the application was pending, even if your I-94 expired some time ago.

Key Points to Remember:

1. Timely filing – As long as you filed the extension request before your I-94 expired, and the application was submitted in good faith and not frivolous, you are protected from accruing unlawful presence, even if the process continues after your I-94 has expired.
2. No unlawful presence penalties – Departing the U.S. while your application is still under review ensures that you will not accrue unlawful presence, as long as you did not engage in unauthorized work during your stay.
3. Waiting period – According to USCIS guidelines, if the I-539 request was timely filed, you will not accrue unlawful presence during the period the application is pending. USCIS’s policy manual (Chapter 40.9.2(b)(3)(C)) clarifies that an individual who leaves the U.S. while their application is pending does not accrue unlawful presence:

As discussed in chapters 40.9.2(b)(2) and 40.9.2(b)(3) of the AFM, there are situations in which an alien who is present in an unlawful status nevertheless does not accrue unlawful presence. As a matter of prosecutorial discretion, DHS may permit an alien who is present in the United States unlawfully, but who has pending an application that stops the accrual of unlawful presence, to remain in the United States while that application is pending. In this sense, the alien’s remaining can be said to be ‘authorized.’ However, the fact that the alien does not accrue unlawful presence does not mean that the alien’s presence in the United States is actually lawful.”

Few more important points:

1. Departure documentation – If your I-539 application is still pending when you leave the U.S., it is important to retain all relevant documentation, including flight tickets, I-539 receipt notice, and your electronic I-94 record, to prove that you maintained lawful status and left the U.S. at the appropriate time.
2. Maintain flight records – Keep accurate documentation of any attempts to arrange flights, especially if there were delays due to circumstances beyond your control, such as travel restrictions during the COVID-19 pandemic.
3. Notify USCIS – It is advisable to send a letter to USCIS with documentation of your departure from the U.S.
4. Keep all records safe – Store all related documents in a secure place in case you need to present them for future visa applications or when re-entering the U.S.

Conclusion

If you filed your I-539 extension request on time and left the U.S. while the application was pending, you will not accrue unlawful presence, and your visa should remain valid. However, if the application is denied while you are still in the U.S., your visa could be canceled under Section 222(g), and you would need to apply for a new one. It is crucial to retain all documentation and be prepared to provide it in future immigration processes.

This article outlines the general procedures and policies related to extending nonimmigrant status in the U.S., but each case is unique. Therefore, it is always recommended to consult with an immigration attorney for personalized advice.

(Note: This article is written in masculine form for convenience but applies equally to all genders.)