B2 Visa extension for parents

1AurCitizen

Registered Users (C)
#21
From what I've been browsing thru on other forums, USCIS has elevated scrutiny of EOS\COS applications. OP had stated in another forum that they used 'travel and tourism plans' as a reason for the extension request. Such thinly-veiled frivolous requests generally earn a denial; extensions are primarily intended for medical/life-death issues, not more travel and tourism. With i539 adjudications taking several months, overstaying past the i94 date is irresponsible. A denial here would risk their visa.
 

SusieQQQ

Well-Known Member
#22
Agree with aurcititizen. Indeed, if you follow USCiS’s own blog posts (such as on Facebook) it’s clear that they are clamping down on anything and everything they can think of.
 

arun2681

Registered Users (C)
#23
From what I've been browsing thru on other forums, USCIS has elevated scrutiny of EOS\COS applications. OP had stated in another forum that they used 'travel and tourism plans' as a reason for the extension request. Such thinly-veiled frivolous requests generally earn a denial; extensions are primarily intended for medical/life-death issues, not more travel and tourism. With i539 adjudications taking several months, overstaying past the i94 date is irresponsible. A denial here would risk their visa.
Okay thanks for your input. So, as long they leave before the expiry of their current I-94, their visa will not get revoked, even-though their EOS application gets denied in the future.
 

newacct

Well-Known Member
#24
And I hope you realize if the petition gets denied, their current visa will be canceled? Even if they’ve left before the petition gets adjudicated - they will still be considered to have overstayed if they don’t leave by the end of the original stay granted on their I-94.
Not true if they leave before the application is decided. In that case their visa is not affected.
 

SusieQQQ

Well-Known Member
#25
I think this site is generally accurate on legalities?

Past the I-94 Date
As long as you filed the extension application before the expiration date of the current I-94 form, you are in legal status as long as the application is pending or 240 days, whichever comes first.

However, if you are still in the U.S. when your extension application is denied, you immediately go out of status. You will have to leave immediately. ...If you are in the U.S. past your I-94 date, and if your visitor visa extension is denied and if you have any 10 year multiple entry visa, that visa is considered automatically cancelled under section 222(g)

https://www.immihelp.com/visitor-visa-extension/visitors-visa-extension-denied.html

Their link to section 222g, which appears to simply copy the official document, notes that
222(g) does apply to aliens who file for a COS or EOS and who remain after the date on their I-94, if the COS/EOS request is subsequently denied or is still pending at the time of the alien's departure

https://www.immihelp.com/visas/222g.html


(I’ve added the emphasis)
 
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newacct

Well-Known Member
#26
I think this site is generally accurate on legalities?

Past the I-94 Date
As long as you filed the extension application before the expiration date of the current I-94 form, you are in legal status as long as the application is pending or 240 days, whichever comes first.

However, if you are still in the U.S. when your extension application is denied, you immediately go out of status. You will have to leave immediately. ...If you are in the U.S. past your I-94 date, and if your visitor visa extension is denied and if you have any 10 year multiple entry visa, that visa is considered automatically cancelled under section 222(g)

https://www.immihelp.com/visitor-visa-extension/visitors-visa-extension-denied.html
Whoever wrote that statement probably meant to say if you are still in the US when it is denied, and wasn't clear in writing it.

The Foreign Affairs Manual contains an official detailed discussion of INA 222(g) that seems to confirm in multiple places that if the person leaves before the (timely, non-frivolous) application is decided, INA 222(g) definitely doesn't apply.

(Admittedly, the FAM is the Department of State's manual and it's probably CBP that would are most about validity of visas, but there aren't up-to-date CBP manuals available publicly, and this is the most detailed public official INA 222(g) guidance there is.)

See 9 FAM 302.1-9(B)(1)(c)(4)(b):
[...] In addition, if an alien departs after the date on the Form I-94 passes, but before his or her application for extension or change of status has been decided by USCIS, they must be subject to a blanket exemption from INA 222(g), if the application was filed in a "timely manner" and is "nonfrivolous" in nature. [...]
And in the summary of scenarios in 9 FAM 302.1-9(B)(6), one of them is:
Alien admitted until specified date; submits a timely and non-frivolous application for extension or change of status; departs U.S. after expiration of Form I-94, but before a decision on the Form I-94 extension/change of status application. -- Not Subject [to INA 222(g)]
 

SusieQQQ

Well-Known Member
#27
Whoever wrote that statement probably meant to say if you are still in the US when it is denied, and wasn't clear in writing it.

The Foreign Affairs Manual contains an official detailed discussion of INA 222(g) that seems to confirm in multiple places that if the person leaves before the (timely, non-frivolous) application is decided, INA 222(g) definitely doesn't apply.

(Admittedly, the FAM is the Department of State's manual and it's probably CBP that would are most about validity of visas, but there aren't up-to-date CBP manuals available publicly, and this is the most detailed public official INA 222(g) guidance there is.)

See 9 FAM 302.1-9(B)(1)(c)(4)(b):


And in the summary of scenarios in 9 FAM 302.1-9(B)(6), one of them is:
The link I quoted does mention that exception, but then that goes down to what “non-frivolous” means, I guess. I agree with 1aurcitizen on this. Difference between wanting to “tour more” after 6 months of already being in the US and being in an accident, for example. Again, with current uscis management, not something I’d want to play with but to each their own of course.
 

newacct

Well-Known Member
#28
The link I quoted does mention that exception, but then that goes down to what “non-frivolous” means, I guess. I agree with 1aurcitizen on this. Difference between wanting to “tour more” after 6 months of already being in the US and being in an accident, for example. Again, with current uscis management, not something I’d want to play with but to each their own of course.
The very next sentence in that FAM section (9 FAM 302.1-9(B)(1)(c)(4)(b)) says
You may consider an application nonfrivolous if it is not, on its face, a groundless excuse for the applicant to remain in the United States to engage in activities incompatible with his or her status.
A different section of the FAM (9 FAM 302.11-3(B)(5)(c), which is also about extension or change of status being timely and non-frivolous) says:
To be considered "nonfrivolous" the consular officer must find that the application had an arguable basis in law and fact and must not have been filed for an improper purpose (e.g., as a groundless excuse for the applicant to remain in activities incompatible with his or her status). It is not necessary to determine that the DHS would have approved the application for it to be considered nonfrivolous.
Wanting to tour more is definitely an arguable basis for an extension and not a groundless excuse, and so is non-frivolous even if you think there is a good chance USCIS wouldn't have approved it. Something that is clearly incompatible with status like working in B2 status, would be frivolous.
 

SusieQQQ

Well-Known Member
#29
The very next sentence in that FAM section (9 FAM 302.1-9(B)(1)(c)(4)(b)) says


A different section of the FAM (9 FAM 302.11-3(B)(5)(c), which is also about extension or change of status being timely and non-frivolous) says:


Wanting to tour more is definitely an arguable basis for an extension and not a groundless excuse, and so is non-frivolous even if you think there is a good chance USCIS wouldn't have approved it. Something that is clearly incompatible with status like working in B2 status, would be frivolous.
Depends how the uscis interprets a request to “tour” when the applicants are basically just staying with their child. Certainly there have been posts reporting similar requests being denied. Of course we don’t have all the info, either on the applicant or what the adjudicating officer will think, but I do hope the OP comes back and updates us with both the eventual timeline and decision on the case.
 

arun2681

Registered Users (C)
#30
Sure, Will provide an update in the forum when we receive any communication from USCIS.
In the meantime, I have one more question on the I-539 form. My father-in-law filled the form as the applicant and added my mother-in-law to the application. He paid one filing fee of $370. Was this the right thing to do. or should my mother-in-law also filled another I-539 application and paid a second $370. Thanks,
 

arun_2681

Registered Users (C)
#31
Okay. A concluding update to the story. My parents-in-law went to India on Feb 21, 2018 - the date of their current I-94 expiry, so did the right thing. And, then we sent a letter to USCIS to withdraw the application in March 2018. We received a letter in April 2018 from USCIS, confirming that they have withdrawn the allocation.
 
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