H-1B or any other extension petitions should be filed as early as possible– well in advance– before the expiry date of previous extension or the I-94 expiry date
It is always a best practice to file an H-1B or any other extension petitions well in advance before the expiry date of previous extension or the I-94 expiration date. The usual processing time for the USCIS-Vermont Service Center or California Service Center is 2 months based on their website, and in cases for which an RFE is issued will take another 2 months or longer to get an approval or denial based on the RFE response.
Recently in an unpublished decision in Invica Trupcevic, A096155870 (BIA Nov 7, 2013) handed down by the Board of Immigration Appeals (BIA), it upheld the denial of the respondent’s application for adjustment of status (Form I-485) on grounds that the respondent had failed to maintain lawful status for more than 180 days. The Board found that the filing of an application to extend H-1B nonimmigrant status did not confer lawful status under Section 245(k) of the Immigration and Nationality Act, and the government’s delay in adjudicating the application did not qualify for the regulatory exception for “technical violations resulting from inaction of the Service.” BIA referred to a USCIS policy guide which states that the period during which a timely filed [extension of stay] or [change of status] an application is pending continues the alien’s period of authorized stay in the United States (allowing the alien to avoid accruing unlawful presence), but does not extend the alien’s period ‘authorized status’. In other words, only the actual government approval of the request extends lawful status, whereas denial of the extension request causes the original expiration of status to stand [and] the renders the subsequent status unlawful. (USCIS Adjudicator’s Field Manual also states that when any extension of status request is “ultimately approved, the period during which the [extension request] had been pending would be considered, in retrospect, a period in which the alien was in a lawful nonimmigrant status…”).
BIA illustrated the fact that the aliens can be “lawfully present” in the United States (i.e., in a “period of stay authorized by the Attorney General”) even though their “lawful status” has expired. Therefore the pendency of extension petitions provides a right to be “legally present even though their “lawful status” has expired, however, the pending extension petition does not give “lawful status” except by retrospect when the extension petition is approved. [emphasis supplied]
This has been USCIS policy as well as the practice and has been consistent, therefore it is a best practice to seek an extension well in advance rather than waiting for the last weeks or months to the expiry date of previous extension or the I-94 expiration date.