Do I still have legal status in the US?
Q: My P-1 visa application was denied in 2009. My lawyer suggested me to file P-3 while the P-1 was appealed to the AAO. The appeal has been pending for more than two years and is still pending. My lawyer asked me to file a new P-3 visa. Recently, USCIS approved both P-3 visa petitions but my requests to change and extend status were denied because the USCIS claims that my P-1 appeal does not give me any lawful status in the US. What is my status now?
A: Unfortunately you have been out of status when USCIS denied your P-1 application in 2009. Even if AAO sustains your P-1 appeal later, you would still be out of status as your P-1, if approved, would have given you until mid 2010 to stay in the US lawfully. Your lawyer should have told you to leave the US after the P-1 denial and then after P-3 approval, you can apply for P-3 visa overseas and then come back. By staying in the US unlawfully for more than two years, you cannot change to any other non-immigrant status and you cannot file for adjustment of status even if you qualify for any types of employment based visa petition.
If your lawyer did not properly advise you about your status, he or she may have committed malpractice.