读者 qing 询问：我 B2 到期时间是2月22日，I-20 大概三月初才能拿到。所以我准备先延期 B2，然后拿到 I-20 后申请 change of status。我的问题就是，我先延期 B2，但在2月22号之后就是 pending 状态，这种 B2 pending 状态下我能申请 COS 吗？
答：如果 (1) 你的延期申请还在等待批复（case pending），但 (2) 你的 I-94 已经过期，你没有任何合法身份，所以无法再转换身份、或延期，因为转换身份和身份延期的前提条件是你有合法身份。Pending case 只是允许你在美国境内等待 USCIS 审理你的案件，本身并不是任何 legal status。下面是我的英文回复，提这种问题的读者应该能看懂英文，我就不翻译成中文了。
No. You need to be on a valid status in order to be eligible to request for the "change" to another status, which you don't have after your I-94 expires while your extension application is pending. You will have a valid legal status when your extension is approved -- not when your case is being processed.
- Per USCIS, you may seek change of status if "your current status has not expired."
- When your I-94 expires on Feb. 22, you will be immediately out of status, even if you have a pending case; see USCIS explanation here: "Your lawful nonimmigrant status ends, and you are out of status, when your Form I-94 expires, even if you have timely applied to extend your nonimmigrant status."
Alexander Segal, a founding partner of The Law Offices of Grinberg & Segal, PLLC, a New York-based immigration law firm, echoes my opinion: "Awaiting adjudication of your B2 status extension request while does allow you to remain in the USA, does not provide you with a valid nonimmigrant status you need to be on in order to seek change of status."
In your case, since your I-94 will expire before you obtain Form I-20 and consequently you won't be able to file the extension and change of status ("COS") together, it's best for you to wait until your extension is approved before you seek COS. However:
- If your extension is eventually denied, you will not be eligible for COS.
- If your extension is approved, say, in May, 2018, you may not have enough time left to file and for USCIS to approve your application of COS before the date designated on I-20 to start your course. USCIS may still approve your request, but you may need to defer your attendance.
- The processing time of extension application could be very long; see here. If your application is approved after the requested date of extension, e.g. you application to extend your B1/B2 status until June, 2018 is approved in July, 2018, your will already be out of status again by the time it's granted and you will be ineligible for COS.
You may nevertheless apply for change of status while your extension is pending, however USCIS is more likely to deny than approve your application, even if your extension has been approved by the time they process your COS request, because your eligibility for COS is determined at the time of filing.