An I-94 that Expires while an I-485 Application is Pending is NOT generally a problem! - an Exception to the Normal Rule....

If you are a foreign national in the United States, you should always know your I-94 expiration date. An I-94 expiration generally controls how long you can be in the United States. Historically, I-94s were cards stapled into your passport, but now the I-94 data including the expiration, can found online here.

If you are in the final stage of green card processing with an I-485 adjustment of status application pending, you may be eligible for Advance Parole. If you use Advance Parole to re-enter the US, current US Customs policy is that you will receive a new I-94 valid for 12 months from your date of entry (or, technically your "date of parole.")

But these days, for various reasons, your I-485 application may very well be pending more than 12 months after your date of entry/date of parole. If that happens, then it will mean that your I-94 could expire while your I-485 application is pending.

It turns out finding the precise guidance authorizing this situation is not easy. And getting an updated I-94 is not easy without leaving the US and returning again, which can be expensive and totally unnecesssary.

However, there is some important, old guidance from the American Immigration Lawyers Association (AILA), from back in October 2002, where AILA had a liaison with then INS Headquarters - the Immigration Services Division (ISD). In that liaison discussion from October 2002 (excerpted below), you will find confirmation that --

"INS agrees that there is no unlawful presence created solely by expiration of I-94 where an I-485 application is pending."

****AILA Summary of October 17, 2002 ISD Teleconference****

Question #2: At the request of Inspections, we have advised our membership that, under current INS guidelines, an individual who returns to the U.S. with an advance parole document will be paroled for up to one year, rather than “indefinitely” as in the past. INS states they have stopped paroling indefinitely because this gave the I 94 “indefinite life”. In view of this change, we seek clarification of the following:

a.   What is the significance of the I-94 expiration date on a pending I-485 application? It would appear that the individual would not be accruing unlawful presence if the I-94 expires while the I-485 is still pending and that the I-94 expiration would have no affect on adjustment eligibility. Therefore, what is the impact? 

 b.   Why is an “indefinite life” of concern? An I-94 for a parole carries no work authorization with it, nor does it carry authorization to remain in the U.S. once the purpose of the parole is completed (i.e., the adjustment application is adjudicated). 

c. Even if the expiration of the I-94 has no impact, many individuals are understandably uncomfortable being present in the U.S. with an expired admission document. What would be the procedure to request an extension of the period noted on the I-94?

In addition, kindly confirm when this policy took effect and provide a copy of any guidance issued in this regard.

Answer to Question #2 - from INS Immigration Services Division (ISD): 

“ISD agrees that there is no unlawful presence created solely by expiration of I-94 where an I-485 application is pending, in absence of other issues. However, they will defer to Inspections to respond to these questions. They will advise us when they receive responses from Inspections.”