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AILA/VSC Liaison Committee Practice Pointer: How to Avoid Classic Good News/Bad News Scenario: B-1/B-2 Extension Approved, but New I-94 Has Already Expired

Cite as "AILA InfoNet Doc. No. 08120564 (posted Dec. 5, 2008)"

The VSC Liaison Committee offers guidance on avoiding the all too common situation in which the B1/B2 extension is approved, but the processing time took so long that by the time the approval came, the beneficiary was already unlawfully present!

It often happens that the VSC is unable to adjudicate an I-539 seeking an extension of B-1 or B-2 stay within the time period requested in the extension application, which is usually 6 months. The VSC has informed AILA Liaison that the VSC will adjudicate an approvable extension application to the date of approval, plus one day, where the adjudication takes place after the requested extension date has been reached (as long as the requested date was for a period of no more than 6 months) . Obviously, this process exposes aliens to unlawful presence and 222(g) penalties. AILA's VSC liaison committee is working with the VSC to rectify this problem.

Regulations at 8 CFR 214.2(b)(1) only permit requests for extensions of up to 6 months. Where an application to extend B1/B2 status pursuant to 8 CFR 214.2(b)(1) remains pending close to the expiration date of the time period requested, VSC has advised AILA Liaison that it recommends that the alien leave the U.S. prior to adjudication, or to interfile a second I-539, including the receipt notice of the still-pending petition, with an explanation of the reason that the alien will not be able to depart within the original time requested, supported by appropriate documentation.

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