Equitable Tolling of Unlawful Presence While an Application is Pending

According to §212(a)(9)(B) of the Immigration and Nationality Act (INA), any visitor to the United States who remains in the country without status may accrue unlawful presence. A person that has allowed unlawful presence to accrue for 180 days or more is subject to a three year statutory bar on reentry. For periods of unlawful presence greater than one year, the penalty is a ten year bar on reentry. A person may begin to accrue unlawful presence upon the expiration of his or her I-94. With this in mind, the denial of an application could potentially have negative implications on the status of the applicant for future or subsequently filed applications, if not for USCIS’ policy of equitable tolling.

If a nonimmigrant visa holder files the proper documentation for a change of status or extension of stay in a timely manner (i.e. before the expiration of his or her I-94 or duration of stay), (s)he does not accrue unlawful presence for the time that his or her application is pending. Once his or her original I-94 expires, (s)he is no longer in an authorized status, but is still exempt from the accrual of unlawful presence. The statutory provisions at INA §212(a)(9)(B)(iv) provide that in such cases the first 120 days after the expiration of the I-94 will be tolled for good cause, meaning that they will not be counted as unlawful presence for the purposes of the statutory bar on reentry.

The Adjudicator’s Field Manual (AFM), however, has prescribed much more liberal policies for the Service’s response in such matters. The AFM states that, so long as the petition is not denied on the grounds that it is frivolous or untimely, or that the applicant worked without authorization, unlawful presence will not accrue before a decision is made, no matter how long an application is pending. See AFM at 40.9.2(b)(3)(B). The above statutory and policy protections apply even when the applicant’s request is denied, with the above stated qualification that it must not have been filed frivolously—if the application is found to have been filed fraudulently or in an untimely manner, or if the applicant worked without authorization, the date of accrual begins the day his or her I-94 expired.

Once the applicant’s request has been denied, any further action accrues unlawful presence, including appeals on denied petitions and motions to reopen or reconsider. Unlawful presence accrues throughout the appeals process and is counted against the applicant should his or her motion or benefit be denied. If the motion or benefit is granted, the unlawful presence is removed and the applicant is returned to authorized status extending back to the date his or her I-94 expired. See AFM at 40.9.2(b)(3)(D).

USCIS’ policy of tolling unlawful presence while an application is pending protects applicants from being forced to abandon pending applications upon the expiration of their status. Due to equitable tolling, applicants may remain in the U.S. legally for the duration of the application process, even after their previously approved status has expired.