Leaving the U.S. While a B Visa Extension Is Pending: Automatic Denial and Whether to Withdraw
This article explains how departing the U.S. while a B visa extension is pending differs from departing during a pending change of status, describes possible denial or approval as of the departure date, discusses effects on the visa and future entry, the last action rule risk, and whether to withdraw the application or notify USCIS.
Will the application be automatically denied?
If you file a change of status application and leave the United States before it is approved, the application will be treated as abandoned and denied. A Department of Justice memorandum explicitly states this. However, if you apply for an extension, it is not automatically treated as abandoned. See {https://gonglue.us/135311}.
If you timely filed an extension application but, due to slow USCIS processing, you left the United States as scheduled while the application remained unadjudicated, according to feedback we have received, when USCIS finally gets to your case it will mostly deny it (it may also approve it as of your departure date)—because, on the one hand, you have already left the United States and have no use for the extension; on the other hand, the period you originally requested has passed, so whether it is approved no longer has practical significance. For example, you applied to extend from 2022/04/01 to 2022/09/30, you left on 09/30, and USCIS did not process your application until 2022/11/01; even if approved, it would only be until 09/30—what would be the point?
In the above situation, whether the final outcome is approval or denial, it will not affect your visa (it will not be voided), nor will it affect your future entry or applications for immigration benefits. This article explains: {https://gonglue.us/14973}.
But! If you leave the United States early due to a change of plans while your application is still pending, and you will return to the United States soon afterward, then be careful—if USCIS later approves your earlier application, your legal status will be determined by the last status that took effect. This is called the "last action rule," and it may inadvertently shorten your period of authorized stay, or even override your lawful status and cause you to violate status or be out of status! For details, see: {https://gonglue.us/134595}.
If USCIS still has not approved your application when you leave the United States, it is advisable to notify them that the applicant has departed. If you filed online, it is advisable to log into your account from time to time to check whether you have received any notice—for example, if you receive an RFE, it is still advisable to respond (such as by telling them the applicant has left).
Is it necessary to withdraw the application?
There are differing views on whether it is necessary to proactively "withdraw." My view is that in the vast majority of cases, there is no need and no reason to withdraw unless USCIS asks you to do so. As long as you timely filed a "non-frivolous" application before your I-94 expired and USCIS had not adjudicated it when you departed, you do not have unlawful presence and your visa will not be cancelled. The purpose of proactively notifying USCIS that "I have left the United States" is to avoid your application being considered "frivolous" because "you were notified to appear for biometrics but never showed up."
USCIS's reply to this reader (template) also states that if you depart while an extension is pending:
If you applied for an extension of stay and you leave the United States before a decision is made on your application and you plan to return to the United States in the future, please keep a copy of your application plus the receipt notice to show to the Immigration Inspector on your return travel to the United States. Otherwise, you may be denied entry for overstaying on your last visit.
Just keep the application and receipt; the purpose is to be able to prove, if a border officer asks, that "I timely filed an application and have no unlawful presence." USCIS has not recommended withdrawing in this situation. In addition, for the period you remain in the United States after your I-94 expires, you need a pending application to have authorized stay; if you withdraw that application, in theory this period of stay would no longer be authorized stay; if you have multiple applications, mistakenly withdrawing one is even more likely to create a status gap—Case 2 in this article discusses a similar situation.
However, as mentioned earlier, if you leave the United States early due to a change of plans and will re-enter soon afterward, you need to consider "whether USCIS approving the extension after I leave will affect my new status"; in this situation, you may consider withdrawing the earlier extension application. Note that whether it is the extension application or the withdrawal of the earlier application, approval is up to USCIS—it is possible that you submit a withdrawal request but USCIS later still approves your earlier application.
If you have the above concerns, you should carefully read this article: {https://gonglue.us/134595}.
[add-post-b id=134595]
Other related articles:
- [https://gonglue.us/65846]
- {https://gonglue.us/77855}
- [https://gonglue.us/2827]
