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?
My opinion is that you are in “Period of authorized stay” as you filed your F1 COS application while you were in legal status.
We see this similar cases everyday with H1b to H4 applicants who file H4 COS application just to stay safe in case H1B is denied.
Even when my I-94 has already expired when I filed my F2 COS?
You are in “ Period of authorized stay ” only when your i94 has expired.
Before your i94 expires, you are in status.
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?
You can submit another COS application but all the applications will be bridged together.
The best option would be to go out of USA and then re-enter using a valid status to clear everything.
I suggest to not take risks in today’s turbulent times.
If I am able to get H1B sponsorship approved again, yes I will take your suggestion, go out and get in again.
However, in the case of F1, it would be difficult to get it approved outside of USA with approved i-140 correct?
Yes, the chances of F1 approval with i140 already approved are low due to the immigrant intent.
Hi Anil,
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.
Here is her comment -
I cannot find the rule exactly that will apply to your situation.
See Chapter 3 - Unlawful Immigration Status at Time of Filing (INA 245(c)(2)) | USCIS
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 Superseded Content | 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? 
USCIS decisions do vary in similar situations and that’s the reason i suggested to go out of US and re-enter.
That way, you will avoid any scope of mis-interpretation as well any “unlawful presence” that USCIS may think you have accrued.