She can file Form I-539 for status extension at any time until her status expires. The request just needs to be officially received by USCIS before its status expires.
If she has applied for an extension of status before her status expires, she can stay in the United States while she is pending, even if her status expires in the meantime. The government will generally not evict her because she is out of status while her status extension is pending. In addition, she does not accumulate "illegal presence" as long as her timely non-frivolous extension request is pending, even if her I-94 has expired. If her status extension is approved, she will be granted status retroactively from the expiration date of her last status.
See this brochure:
What if I file a time extension but USCIS does not
a decision before the expiration of my I – 94?
Your legal non-immigrant status ends and you are out of status when
your I-94 form expires, even if you asked in a timely manner to extend your
non-immigrant status. Typically, on a discretionary basis, USCIS
postpone any removal proceedings until the application is judged
and USCIS decides on your request to extend non-immigrant status.
Even if you are not actually in a legal non-immigrant situation, you
do not accumulate "illegal presence" for purposes of inadmissibility
under section 212 a) 9) B) of the Immigration and Nationality Act,
while your status extension request is pending if it has been filed
before the expiration of your I-94 form.
If your request for an extension of stay is approved, the approval
will relate to the expiration date of your I-94 form and your status
while your request is pending will be considered to have been
If your application is denied, you may have to terminate your employment
and leave the United States immediately.
In addition, any non-immigrant visa in your passport granted in
the connection with your classification becomes null. Once your visa has been issued
void, you must submit any new visa application to a US consulate
your country of origin (not a third country, except in rare cases like
determined by the United States Department of State).
If her timely application for non-frivolous status extension is denied and her I-94 has expired, and she is still in the United States on the date of the denial, she will begin to accrue "illegal presence" from the date of the denial.
See chapter 40.9.2 (b) (3) (D) (iv) of AFM:
If a timely non-frivolous request for EOS or COS is denied for
cause, the illegal presence begins to run the day after receipt of the request
And 9 FAM 302.11-3 (B) (1) (b) (4) (b) (ii):
b. DHS interpreted "period of stay authorized by the
Homeland Security, "as used in this context, to include:
(4) For foreigners who have requested an extension of stay or a change of
classification of non-immigrants and who stayed in the United States
after expiration of From I-94 pending the decision of DHS, the
for the entire duration of the suspension of the request, provided that:
a) the foreigner does not work illegally while demand is
pending and did not work illegally before filing the application;
b) the foreigner has not otherwise failed to maintain their status
before filing the application (unless the application is
approved at USCIS discretion and non-maintenance of status
is only the result of the expiration of Form I-94), and
(I) (…); or
ii) if the request has been refused or the foreigner has left while the
application was still pending, that the application had been filed in a timely manner
and not frivolous.
"Illegal presence" does not result in a ban unless it leaves the United States after accumulating more than 180 days of "illegal presence". She should therefore not have to worry about a ban as long as she leaves within a reasonable time after learning of the refusal.
The other consequence of his stay in the United States when his extension of status is refused if his I-94 has expired, is that INA 222 (g) is triggered, which means that the visa that 39; she used to enter the United States is automatically canceled, and she should then apply for US visas in her country of nationality.
In addition, the USCIS has a policy that it will send notices of appearance (NTA) to people after a refusal from I-539 if they are illegally present after the refusal, although I am not sure they always do during the COVID-19 outbreak. . According to this teleconference, they will wait for a period of 33 days (the period to file a reopening or reconsideration motion) after the refusal before issuing the NTA, so this basically means that your mother should try to leave within 33 days following a denial.
On the other hand, if she leaves the United States while her application for extension of non-frivolous status filed in a timely manner is still pending (i.e. before ; she is not approved or refused), she does not accumulate any "illegal presence" and her visa is not canceled.
See AFM chapter 40.9.2 (b) (3) (C):
Departing from the United States when an EOS or COS request is
pending, does not subject a stranger to the 3 year, 10 year or
permanent bar, if he leaves after the expiration of form I-94,
Check-in / check-out unless request is frivolous,
prematurely, or the person had worked without permission.
And the passage 9 FAM 302.11-3 (B) (1) (b) (4) (b) (ii) cited above.
And that does not cancel his visa under INA 222 (g), according to 9 FAM 302.1-9 (B) (1) (c) (4) (B):
(…) In addition, if a foreigner leaves after the date indicated on the I-94 form
pass, but before requesting an extension or change of
status has been decided by USCIS, they must be covered
exemption from INA 222 g), if the request has been filed within a "deadline
manner "and is of a" non-frivolous "nature. You may consider a
non-frivolous application if it is not, at first glance, a
apologize to claimant for staying in the United States for engaging in
activities incompatible with his status. Messages can be
convinced that a stranger testified in a timely manner using such evidence
as a record in USCIS Person Centric Query Service (PCQS) or the date
USCIS receipt or void check for payment of
fees for requesting an extension or change of status accompanied by proof of
the expiration of the legal status of the foreigner.
The meaning of being filed in a timely and non-frivolous manner is described in chapter 40.9.2 (b) (3) (C) of AFM:
The requirement that the request was made in a timely manner can be established
by presenting evidence of the date on which the
authorized stay expired, accompanied by a copy of a dated file
received, a void check payable to USCIS for EOS or COS
request, or any other credible evidence of a timely deposit.
To be considered non-frivolous, the request must have a
basis of law and fact, and must not have been filed for abuse
(like extending your stay to continue activities
incompatible with its status).
To determine if an EOS or COS request was non-frivolous,
DOS informed consular posts that there was no need to
determination that USCIS would have ultimately ruled in favor of the
And 9 FAM 302.11-3 (B) (5) (b-c):
b. (…) Therefore, for all cases of potential inadmissibility
under INA 212 (a) (9) (B) be it under the three-year mark of
212 (a) (9) (B) (i) (I) or the INA 10-year bar 212 (a) (9) (B) (i) (II), DHS
decided to consider all the time during which a request for
the extension of the stay (EOS) or the change of non-immigrant status (COS) is
waiting to be a period of stay authorized by the Homeland Secretary
(1) The request was filed on time; that is to say before
expiration date of Form I-94, Statement of Arrivals and Departures;
(2) The request was "not frivolous"; and
(3) The foreigner has not held an unauthorized job (either
before or after April 1, 1997).
vs. To be considered "non-frivolous", the consular officer must
the claim had an arguable basis in law and in fact and should not
have been filed for an improper purpose (for example, as an unfounded excuse
so that the applicant remains in activities incompatible with his
status). There is no need to determine that DHS would have
approved the request for it to be considered non-frivolous.
The question is therefore whether his request for extension of status is "frivolous" or not. Note that it is possible that a request may be "non-frivolous" even if the USCIS is likely to refuse it; it must simply have a "defensible basis in law and in fact" and not be "filed for an improper purpose".
In my opinion (unprofessional), a request for extension of status in order not to be able to return to your country of origin because of the COVID-19 flight prohibitions is not frivolous. On the USCIS Special Situations page, he states that for requests for extended status and change of status, USCIS will take into account how special situations have prevented your departure.