The filing of 245(a) or (i) Adjustments of Status and Section 249 Affirmative Registry applications do not lead to Unauthorized Stays and are actually considered a period of stay authorized by the AG (Attorney General) , even if your I94 date has passed. For example, if you marry a U.S. citizen and your stay ends January 30th yet you file a case to Adjust Status and wait a year, you will still be fine. However, do not step foot outside the country. KEY: If you had an unlawful stay before filing the case, it applies toward the 180-365 day overstay situation.

Once you file your case, though, you are authorized until your case is approved, denied, renewed, or appealed at the BIA (Board of Immigration Appeals) level. KEY: Appeals filed at the at Federal Court to not stay the time. This section does not apply to children and spouses who are subject to battery or extreme cruelty and you can show a relationship between your stay and the cruelty.

If you file for Adjustment of Status, you are not in unauthorized stay as long as your case has not been decided and you did not work without authorization. In other words, you are in authorized stay until your case is decided.

Say you enter on a B-1 visitor for business or B-2 visitor for pleasure. You file a nonfrivolous case for an extension before the first stay expired. Of course, your I-94 has expired and it has been 3 months since you heard from the USCIS. You are considered to be in authorized stay. This is the case, even if it takes them more than 120 days (I will explain the 120-day rule shortly).

BUT if the case is ultimately denied, your unlawful presence starts from when your I-94 expired so be very careful it does not exceed six months! BUT that only applies if it was frivolous, not filed on time, or because you worked without authorization, otherwise you are fine and presence starts when the original case is denied. If you were a D/S (duration of status, such as F or J visa) then it only starts when the case is denied, EVEN if denied for being frivolous, untimely or due to unauthorized employment.

As to the 120-day rule, 8 USC (United States Code....the federal laws) Section 1182(a)(9)(B)(iv) states that the 3-year bar timeline is tolled (=stopped) for 120 days if you were lawfully paroled (they let you in) or admitted (you gained a status) , filed a legitimate case before your status expired, and did not work without authorization. There are arguments both ways as to whether the case should ultimately be approved or not. KEY: The bars do not count the time cumulatively. In other words, if you stayed 3 months this year and 3 months next, they are not added together.

KEY: Waivers are possible if you are the an immigrant and the spouse or son/daughter of a citizen and can show extreme hardship. For example, your spouse is a citizen, your children are the step-children of a citizen and they qualify to make this argument. It is called a 601 waiver (please do not simply fill out the form without consulting a lawyer; a legal brief can make all the difference in the world).