B2 Visa extension for parents

[1AurCitizen]

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]

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]

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]

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]

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)

 

[newacct]

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]

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]

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]

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]

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]

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.

 

[Ksriharsha2019]

1. They decide to leave the US on 4/10/2018, with application still pending with USCIS
a. Will this be considered as abandonment of application

It will not, the USCIS still wants to know/investigate whether or not you got a genuine reason for extension.

b. Do CBP/airport officials inform USCIS about the person leaving the country that triggers them to stop the processing

So, your application will still be processed.

c. Or, will the application continue to be processed and a decision communicated in the current time-frame, that is around May/Jun 2018
i. If it gets approved in May/Jun, then we are good.
ii. If it gets rejected in May/Jun, will they accrue an overstay for 2 months from Feb 21 to Apr 10, 2018, which puts them in risk of coming back the next time?

If it gets rejected for whatever reason, they will have already incurred two months of overstay. While this may be overlooked upon their future entries (since the case had been pending), this is definitely a flag!

2. They decide to leave the US on 4/10/2018, application is approved on March 21, 2018:
a. Will they still accrue an overstay for 1 months from Feb 21 to Mar 21, 2018,, which puts them in risk of coming back the next time?

Not at all. Been there done that!

3. They decide to leave the US on 4/10/2018, application is rejected on March 10, 2018:
a. Should they should leave the US the same day they see the update online or should they wait until they obtain the notice in the mail.
b. Will they accrue an overstay for 20 days from Feb 21 to Mar 10, 2018, which puts them in risk of coming back the next time?

They will have to leave the country immediately. And again, they will have already incurred an overstay of however many days.

4. We are in now on Jan 18, 2018. Their application to extend to April 10 gets rejected on Jan 21, 2018:
a. As long as they leave the US before the current Feb 21, 2018, they should be good with USCIS/Immigration compliance correct?
b. The rejection does not impact their existing I-94 expiry, correct ? (this maybe a stupid question, but just wanted to be sure)

No impact whatsoever.

Based on my own experiences, if you have a strong and genuine reason for your parents to extend their stay, I would not worry about getting a rejection. Good luck!

Hi,

My mother-in-laws extension got RFE asking for evidence of stronger ties back to India. Unfortunately she was a home maker and my father in law passed away recently. So she does not have much evidence to show except for bank statements.

Her i94 expires in a couple of weeks and we need to respond to RFE by Oct 9th. Is it safe to stay beyond i94, while responding to RFE in parallel with whatever we can gather by then?

She plans to leave by end of November and my concern is denial and Visa becoming void based on some of the responses I have seen.

 

[1AurCitizen]

Hi,

My mother-in-laws extension got RFE asking for evidence of stronger ties back to India. Unfortunately she was a home maker and my father in law passed away recently. So she does not have much evidence to show except for bank statements.

Her i94 expires in a couple of weeks and we need to respond to RFE by Oct 9th. Is it safe to stay beyond i94, while responding to RFE in parallel with whatever we can gather by then?

She plans to leave by end of November and my concern is denial and Visa becoming void based on some of the responses I have seen.

I wouldn't stay past the i94 in the current USCIS clampdown. The RFE is an indication she's already on thin ice.
What was her date of admission into the US?

 

[Ksriharsha2019]

I wouldn't stay past the i94 in the current USCIS clampdown. The RFE is an indication she's already on thin ice.
What was her date of admission into the US?

Date of admission is 24-March. Admit until 23-sep per i94.

 

[Ksriharsha2019]

Date of admission is 24-March. Admit until 23-sep per i94.

I intend to respond RFE, but might take about 3 weeks to gather evidence by which her i94 expires. Would it be okay to stay until such a time and wait for response. It appears that the processing time would be around 2 months?

 

[SusieQQQ]

I intend to respond RFE, but might take about 3 weeks to gather evidence by which her i94 expires. Would it be okay to stay until such a time and wait for response. It appears that the processing time would be around 2 months?

Understand that if she gets denied her visa will be voided and she will have an overstay on her record if she has not left by 9/23.

 

[Ksriharsha2019]

Understand that if she gets denied her visa will be voided and she will have an overstay on her record if she has not left by 9/23.

What will be the impact if she leaves while the decision is pending after responding to RFE?

 

[SusieQQQ]

What will be the impact if she leaves while the decision is pending after responding to RFE?

Will she leave by 9/23? If not make sure she withdraws the i539 because if denied after she leaves it’s still the same issue (just shorter overstay). However I would also say that a stay past 9/23 then withdrawing i539 will still be on her record and i think it’s very likely that even without a voided visa could cause problems next time she tries to enter.

 

[Ksriharsha2019]

Thank you! It appears that if she leaves on 9/23, withdrawal would not matter as there is no overstay. Is that right?

 

[SusieQQQ]

Thank you! It appears that if she leaves on 9/23, withdrawal would not matter as there is no overstay. Is that right?

Yes, though it’s always better to have proof at least of when she left (remember there is no exit stamp) as a later denial may still have cause problems if she tries to re+enter and cannot prove she didn’t overstay. I would withdraw as a caution against this to be safe.