I have a very similar case, except that I already received my RFE denial for a marketing director position.
- I have an approved I-140 via EB-3, My PD is May 2016
- I Applied for H1B Extension in Dec 2017
- My H1B (6th year) expired on 1/31/2018
- Received RFE in April 2018
- Responded to RFE in June 2018
- Applied for I-539 Status change from H1B to F2 on 8/24/2018
- RFE was rejected on 9/24/2018
- I-539 case was transferred to Potomac Service Center on 12/4/2018, in order to speed up the process. No news yet
- I also applied for a school as I really want to get rid of my marketing career because of the immigration difficulty
I consulted with 4 attorneys, each of them gave me different answers. Right now, they are debating if I am in authorized stay, or am I at unlawful presence at this moment.
Some attorneys said I am in authorized stay because my I-539 was timely filed before my RFE denial.
" Because you timely filed the I-539 application to change to F2 visa status, on Aug. 24, 2018, BEFORE the USCIS denied H-1B application, and therefore during “period of authorized stay”, your I-539 filing was valid and should grant you another “period of authorized stay” while the I-539 application is pending.
So that you can wait in the US for the outcome of this I-539 application. Please see the instruction of I-539, page 1: “you must submit an application for … change of status before your current AUTHORIZED STAY expires” https://www.uscis.gov/sites/default/files/files/form/i-539instr.pdf"
Some attorneys think that I am already accruing unlawful presence based on a 2018 PM https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-08-09-PM-602-1060.1-Accrual-of-Unlawful-Presence-and-F-J-and-M-Nonimmigrants.pdf
What do you think? And what is your prove?