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"
Thanks for your prompt reply. So I can stay in the U.S. while waiting for my COS decision, without accrual unlawful presence?
What will happen if I find a job now or I received my school admission in next few weeks? Can I submit another COS to change to H1B or F1?
I received an email from one of the attorneys I consulted with. She thinks that my I-539 was not timely filed, because I filed an I-539 after my H-1B I-94 expired but during authorized stay with pending H-1B application that eventually was denied.
Section E(1) has an example that is similar to yours but not exact because in the example, the applicant was in B-2 status, not H-1B. However, a USCIS officer may apply this rule to your situation. You’re correct that generally a pending I-539 will toll accrual of unlawful presence, but I think it’s still a risk in your situation because your I-539 was filed after your I-94 expired. Under the rules you sent me, a USCIS officer may or may not consider the I-539 untimely. It may be up to their discretion. See 40.9 Section 212(a)(9) of the Act - Aliens Unlawfully Present after Previous Immigration Violations | USCIS
What do you think? I am really confused if I accrual unlawful presence or not. It sounds like different USCIS officer may have different opinions?