DS 260 with overstay history

ysongsta

ysongsta

New Member
Sorry for the long post. Thanks in advance!!


I've been a US citizen since 2016, with the country of origin of China. My parents decided to come and join me in the US in 2021.
We submitted the i130 in 2021 June. My parents decided to come and visit us three months later in September 2021, with their b1b2 Visa (valid till 2026).

So the immigration process started via the embassy Visa process, as I heard we can do the status adjustment within the US once they come here. So they came with the B1 B2 Visa with no problem and I've been contacting USCIS since then to switch from the Embassy process to I 485.

In June 2022, we finally received their approval of I-130, however USCIS still sent the process to NVC. I also contacted NVC to switch that process to I45 but no response.

In November 2023, NVC scheduled us for the immigration visa interview in Guangzhou China. I did inquiry and messaging the embassy and NVC to change it to adjustment of status, still no avail. So we decided to send them to China for the interview.

At the interview the interviewer asked my parents to show all the documents and once she saw their immunization and physical examination was done in the US, then she immediately cancelled this appointment saying they have to do it in the designated examination locations in China. So the next step will be to make another appointment with the embassy and take that appointment paper to have a physical exam.


Okay we just followed that but six months passed there's no opening for interview availability. However, last week my mom received the email from the non-immigrants Visa unit from the US Embassy in Guangzhou, saying the visa was revoked under INA 212(a)(9)(B) as of April 30, 2024. Since the email is coming from the non-immigrant Visa unit From US Consulate, and it was referring to the old passport that was used for the 10-year b1b2 Visa, I assume that this is not about the new IR5 Visa that is currently being applied. I think this happens because during their stay from 2021 to 2023, we only renew their b1b2 visa extension for one time which is 6 months, the reason being that we thought they are doing the status adjustment within the US so they don't have to extend the b1b2.

Now I realise because of that, they cannot come to the US without a waiver(i601) for 10 years since the last b1b2 visa extension.
What can we do now?

The current plan is just keep making that ds260 appointment and explaining the situation to the interviewer. Once/if we got the ir5 Visa, do we still need the waiver to pass CBP when crossing the border?

Here is the email from the non-immigrant unit:

Dear Non-Immigrant Visa Applicant XXXXXXX



Please be advised that your U.S. visa has been revoked by the U.S. Department of State. The visa was revoked under INA 212(a)(9)(B) as of April 30, 2024.



This action is based on the fact that subsequent to visa issuance, information has come to light indicating that you may be ineligible to receive a visa, such that you should be required to reappear before a U.S. consular officer to establish your eligibility for a visa before being permitted to apply for entry to the United States.



Please note that you will be unable to travel on your current U.S. visa. If you would like to travel to the United States, you must re-apply for a new visa. Please refer to the below Questions and Answers for further details.





Sincerely,

Non-Immigrant Visa Unit

U.S. Consulate General Guangzhou
 
one more fact: During their stay from 2021 to 2023, my 2-year-old got cancer and then we aalso got a newborn son. They were staying here to help us to get over the difficult time plus it was covid travelling ban. So we only extended their b1b2 Visa for one time because we thought we're going to have i-485 status adjustment which doesn't require the extension.
 
They will not get an immigrant visa until the ban is over or waived. So if they wish to get an immigrant visa before the ban is over, a waiver would need to be obtained before they can be issued a visa.

An immigrant waiver for this ban is only possible if they can show that their US citizen or permanent resident spouse or parent would suffer "extreme hardship" if they can't be in the US. Note that extreme hardship to their child (you) doesn't count. If they do not have a spouse or parent who is a US citizen or permanent resident, then an immigrant waiver is not possible. (Their spouse is each other; if one can immigrate first, the other might be able to qualify for a waiver through them, but since they both have the ban, it doesn't help. I am guessing that none of their parents (your grandparents) are US citizens or permanent residents.)

They should have filed I-485 for Adjustment of Status while they were in the US, and they should not have left the US. They do not need to "contact USCIS" or "contact NVC" to get it switched to Adjustment of Status. They just needed to file I-485, either while I-130 was pending, or after I-130 is approved. Even if the I-130 has been sent to NVC, they would just file I-485, and USCIS will figure it out and get the I-130 back. They can file I-485 no matter how many years they have been out of status. If they have not left the US, they have no ban. But since they left the US, they have a 10-year ban, and most likely cannot waive it.
 
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Thanks so much for the explanation!
The good thing is only my mom received the Visa revocation. I think my father would receive that in a matter of days or weeks because they usually get their paperwork within the same period of time.

But is there a slight chance at my father's Visa is not being revoked, does that mean I can fly him here redo the I485 and have him become citizen in 6 months and then he can sponsor my mom with a waiver?

Some of my friend said I should just write letters to USCIS and NVC and CBP to explain the situation but I'm not sure about the probability they even respond...
 
No. The voiding of a visa when you stay past the I-94 date (unless you have a pending extension or change of status) is automatic by law, under INA 222(g). They do not have to be "notified" for it to happen. Even if they manage to make it on the flight, they will be denied entry at the port of entry, for two reasons: 1) their visa is void, and 2) they have a ban. The ban is also automatic by law, and they do not have to be "notified". Even in the highly unlikely case that they are allowed to enter by mistake, or they are paroled in for some reason, it would still not change the fact that they have a ban, and thus they cannot do Adjustment of Status (I-485) until the ban is over in 2033.

There is nothing to "explain". There is no "probability". The ban is not discretionary. Either they have a ban or they don't, based on the facts. If they don't, then they can get an immigrant visa. If they have the ban, then they can't.

You said "redo the I-485". Did they ever file I-485 while they were in the US? You said they obtained an Extension of Stay. When was the Extension of Stay (I-539) approved? When was the expiration of the I-94 granted by the Extension of Stay approval? When did they leave the US?
 
newacct said:
No. The voiding of a visa when you stay past the I-94 date (unless you have a pending extension or change of status) is automatic by law, under INA 222(g). They do not have to be "notified" for it to happen. Even if they manage to make it on the flight, they will be denied entry at the port of entry, for two reasons: 1) their visa is void, and 2) they have a ban. The ban is also automatic by law, and they do not have to be "notified". Even in the highly unlikely case that they are allowed to enter by mistake, or they are paroled in for some reason, it would still not change the fact that they have a ban, and thus they cannot do Adjustment of Status (I-485) until the ban is over in 2033.

There is nothing to "explain". There is no "probability". The ban is not discretionary. Either they have a ban or they don't, based on the facts. If they don't, then they can get an immigrant visa. If they have the ban, then they can't.

You said "redo the I-485". Did they ever file I-485 while they were in the US? You said they obtained an Extension of Stay. When was the Extension of Stay (I-539) approved? When was the expiration of the I-94 granted by the Extension of Stay approval? When did they leave the US?
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Thank you so much for your in depth explanation! Now I totally understand what each step is doing.

Here are the dates:
Did they ever file I-485 while they were in the US?
- No -
You said they obtained an Extension of Stay. When was the Extension of Stay (I-539) approved?
- Received Date: 12/16/2021, Notice Date 03/25/2023(Yes, 6 months later than the expiration of the approval). Approved from 03/21/2022 toto 09/19/2022.

When was the expiration of the I-94 granted by the Extension of Stay approval?
- Approved from 03/21/2022 toto 09/19/2022.

When did they leave the US?
They left on 10/24/2023 for the interview in China 10/30/2023

So I guess the 10-year ban starts from the end of the approval which is 09/19/2022? Does that mean we can apply as early as 09/19/2032 the ealiest?
 
Accruing between 180 days and 1 year of "unlawful presence" and then leaving the US triggers a 3-year ban. Accruing more than 1 year of "unlawful presence" and then leaving the US triggers a 10-year ban. In both cases, the ban starts when they leave the US.

Based on your details, I believe it is possible to argue that they only started accruing unlawful presence on the Extension of Stay approval date (03/25/2023), and thus they accrued about 7 months of unlawful presence and only have a 3-year ban. This is because they do not accrue unlawful presence for the entire time that a timely-filed, non-frivolous Extension of Stay application is pending, and it was pending until the approval date. Now, there is some ambiguity about this in the rules, but logically it would only make sense that way.

In USCIS Adjudicator's Field Manual chapter 40.9.2(b)(3)(B) (on page 87 of this PDF), it describes the tolling of unlawful presence while an EOS application is pending:
However, according to USCIS policy, an alien does not accrue unlawful presence (the accrual of unlawful presence is tolled), and is considered in a period of stay authorized for purposes of sections 212(a)(9)(B)(i)(I), (B)(i)(II), and (C)(i)(I) of the Act during the entire period a properly filed EOS or COS application is pending, if the EOS or COS application meets the following requirements:
· the non-frivolous request for EOS or COS was filed timely. To be considered timely, the application must have been filed with USCIS, i.e. be physically received (unless specified otherwise, such as mailing or posting date) before the previously authorized stay expired. See 8 CFR 103.2(a)(7) ; 8 CFR 214.1(c)(4) ; 8 CFR 248.1(b) . An untimely request may be excused in USCIS’ discretion pursuant to 8 CFR 214.1(c)(4) and 8 CFR 248.1(b); and
· the alien did not work without authorization before the application for EOS or COS was filed or while the application is pending; and
· the alien has not failed to maintain his or her status prior to the filing of the request for EOS or COS.
If these requirements are met, the period of authorized stay covers the 120-day tolling period described in section 212(a)(9)(B)(iv) of the Act and extends to the date a decision is issued on the request for EOS or COS.
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If an timely-filed, non-frivolous EOS is denied, unlawful presence only starts accruing on the date after the date of the denial, as described in chapter 40.9.2(b)(3)(D)(iv) (on page 89):
If a timely filed, non-frivolous request for EOS or COS is denied for cause, unlawful presence begins to accrue the day after the request is denied.
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Common sense would dictate that an approval should not be treated worse than a denial, so it follows that if the EOS is approved, unlawful presence should begin to accrue no earlier than the date of the approval.

In the section about approved requests (chapter 40.9.2(b)(3)(D)(i), on page 88-89), it simply says that an approved EOS will be granted a new period of authorized stay, and doesn't directly address the question of when unlawful presence starts accruing for the case that the period has already ended. (They probably didn't envision this situation when writing this section.) Normally, the new I-94 expiration date would be later than the approval date, so the unlawful presence would begin to accrue on the new I-94 expiration date. But I don't think that that would make sense when the I-94 expiration date is before the approval date.

Since they will be applying for an immigrant visa, instead of doing Adjustment of Status, what matters more is the Department of State's Foreign Affairs Manual. 9 FAM 302.11-3(B)(1).b(4) says:
b. (U) DHS has interpreted"period of stay authorized by the Secretary of Homeland Security," as used in this context, to include individuals who:
(4) (U) have applied for extension of stay or change of nonimmigrant classification and who have remained in the United States after expiration of the I-94 while awaiting DHS's decision, the entire period of the pendency of the application, if:
(a) (U) the individual does not work unlawfully while the application is pending and did not work unlawfully before filing the application; and
(b) (U) the individual did not otherwise fail to maintain their status before the filing of the application (unless the application is approved at the discretion of USCIS and the failure to maintain status is solely a result of the expiration of the Form I-94), and further provided either:
(i) (U) that the application was later approved; or
(ii) (U) if the application was denied or the individual departed while the application was still pending, that the application was timely filed and nonfrivolous.
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So based on this interpretation, they may be able to apply for immigrant visas starting 10/24/2026. However, if the visa officer disagrees, there is not much they can do to challenge it.
 
Thank you so much for the in-depth analysis! So on 10/24/2026 we should submit all the supporting documents and a letter of explanation like above when we apply for the new b1/b2. Is that the right way to do it? Thanks!
 
Thanks again!
I presented this solution to my lawyer and he said it's a hard argument but we can try. Because most likely they will still use the valid expiration date(09/2022) as the start of the clock of overstaying. He mentioned that we need to just keep applying for waiting for the consulate appointment opening for visa interview, and most likely will be rejected. But we will get a sense of how the timing looks from and their perspective. And then we can re-apply for the B1 B2 visa and submit a non-immigration waiver for the reason that they need to come and visit us as a visitor, not for immigration.

I think that makes sense but I also will use your argument and see if we can shorten the 10 year ban into the three year ban.
 
One lawyer said: keep me posted as you receive notifications from the National Visa Service or the U.S. embassy pertaining to your parents' medicals and any scheduled interview.
 
"This updated guidance provides that if you do not clearly indicate whether your beneficiary wants consular processing or adjustment of status, we will use discretion to decide whether to send the approved petition to the NVC for consular processing or keep the petition for adjustment of status processing, based on evidence of the beneficiary’s most recent location, including the beneficiary’s address on the petition.

This updated guidance also explains how you can contact us to correct an error or update a pending or approved Form I-130. This includes updating the beneficiary’s location and indicating whether they want consular processing or adjustment of status.

Finally, this updated guidance provides general guidance on how we decide whether to approve or deny a family-based immigrant petition, including relevant notices."
 
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