Question on how to count the days overstayed on B2 visa

[qingya]

Hi,

I have a special B2 visa situation and would greatly appreciate any helpful comments.

One of my in-laws visited us here in the U.S. on a B2 visa and was granted 6 months
of stay initially. One month before the end of the 6 months period, we filed the I-539
extension and postponed the returning flight. Several months later one day we checked
the application status online and we found out the extension was denied and said soon
we would receive the response and instructions on how to proceed after the denial in
the mail. We waited several weeks and that paper response never came. By that time
it was already quite close to the postponed returning flight and my in-law eventually
left the U.S. then.

My question is: how many days are overstayed here? Let us say, the initial 6 months
end on "date A", I-539 is denied on "date B" which is months after "date A" and the
actual departure is on "date C", so are the days overstayed C minus A or C minus B?
Would filing of the failed I-539 help at all? Because if it is C minus A, then while waiting
for an extension decision, one is actually accumulating overstayed days? Also, I thought
once an extension is filed, the applicant stays in-status until the decision regardless
what the outcome is.

Sorry for the lengthy post and thank you in advance for any helpful comments.

 

[BigJoe5]

Hi,

I have a special B2 visa situation and would greatly appreciate any helpful comments.

One of my in-laws visited us here in the U.S. on a B2 visa and was granted 6 months
of stay initially. One month before the end of the 6 months period, we filed the I-539
extension and postponed the returning flight. Several months later one day we checked
the application status online and we found out the extension was denied and said soon
we would receive the response and instructions on how to proceed after the denial in
the mail. We waited several weeks and that paper response never came. By that time
it was already quite close to the postponed returning flight and my in-law eventually
left the U.S. then.

My question is: how many days are overstayed here? Let us say, the initial 6 months
end on "date A", I-539 is denied on "date B" which is months after "date A" and the
actual departure is on "date C", so are the days overstayed C minus A or C minus B?
Would filing of the failed I-539 help at all? Because if it is C minus A, then while waiting
for an extension decision, one is actually accumulating overstayed days? Also, I thought
once an extension is filed, the applicant stays in-status until the decision regardless
what the outcome is.

Sorry for the lengthy post and thank you in advance for any helpful comments.

Provided that the I-539 is filed while still in authorized status, the unlawful presence (ULP) starts to accumulate the day after the I-539 denial date or I-94 expiration date whichever is LATER and of course ends upon actual departure.

 

[qingya]

Provided that the I-539 is filed while still in authorized status, the unlawful presence (ULP) starts to accumulate the day after the I-539 denial date or I-94 expiration date whichever is LATER and of course ends upon actual departure.

Thank you BigJoe5 for your answer to my question. So in this case
if the overstayed period (ULP) is less than 180 days, how would it
negatively affect the person's chances to seek re-entry within three
years by applying for the same type of B2 visa in the home country?

Thanks so much again.

 

[BigJoe5]

Thank you BigJoe5 for your answer to my question. So in this case
if the overstayed period (ULP) is less than 180 days, how would it
negatively affect the person's chances to seek re-entry within three
years by applying for the same type of B2 visa in the home country?

Thanks so much again.

All applicants for benefits under the INA bear the burden of proof (INA 291).

Only a few specific circumstances are conclusive or dispositive of the outcome (for example: a convicted murderer, child molester, or known terrorist will ALWAYS be denied).

Everything else is "case-specific" and this is one of those"case-specific" ones BUT far too little detail has been shared for any useful feedback at this time.

 

[qingya]

All applicants for benefits under the INA bear the burden of proof (INA 291).

Only a few specific circumstances are conclusive or dispositive of the outcome (for example: a convicted murderer, child molester, or known terrorist will ALWAYS be denied).

Everything else is "case-specific" and this is one of those"case-specific" ones BUT far too little detail has been shared for any useful feedback at this time.

Thank you BigJoe5 for the above explanations. The specific time-line is:

1) the visitor was granted 6 months on I-94 initially;
2) I-539 was filed one month before I-94 expiration date
3) about three months after I-94 expiration date I-539 was shown denied online
4) never received paper response in the mail and I heard usually leaving within 30 days grace period of denial wouldn't count as ULP
5) several weeks after the denial date still no paper response while the postponed departure flight was only weeks away anyway
6) the visitor ended up leaving on the postponed flight which was about two months after the I-539 denial date
7) it is now more than one year after the actual departure

So the ULP is more than 30 days and less than 180. How would this past
record affect reapplying B2 in the home country? Would there also be some
risks at point of entry even the B2 visa is issued? How is the situation being
handled if unfortunately the visa gets canceled at point of entry for a non-English
speaking elderly person?

Sorry for so many questions, because the in-law is traveling alone and I
need to do more homework.

Thanks a lot.

 

[BigJoe5]

Thank you BigJoe5 for the above explanations. The specific time-line is:

1) the visitor was granted 6 months on I-94 initially;
2) I-539 was filed one month before I-94 expiration date
3) about three months after I-94 expiration date I-539 was shown denied online
4) never received paper response in the mail and I heard usually leaving within 30 days grace period of denial wouldn't count as ULP
5) several weeks after the denial date still no paper response while the postponed departure flight was only weeks away anyway
6) the visitor ended up leaving on the postponed flight which was about two months after the I-539 denial date
7) it is now more than one year after the actual departure

So the ULP is more than 30 days and less than 180. How would this past
record affect reapplying B2 in the home country? Would there also be some
risks at point of entry even the B2 visa is issued? How is the situation being
handled if unfortunately the visa gets canceled at point of entry for a non-English
speaking elderly person?

Sorry for so many questions, because the in-law is traveling alone and I
need to do more homework.

Thanks a lot.

It is still unclear.

Normally a B-2 visa is issued for a period of 10 years. Each individual entry will usually be granted authorization to stay for 6 months and this is shown on the I-94. Is the individual really applying for a new B-2 visa? Are you really talking about an interface with ESTA instead?

Did she have a B-2 visa initially good for multiple entries over a 10 year period BUT only used it once when it was about to expire?

You see now how this "case-specific" uncertainty works? Your replies just add to the confusion and prompt more questions. It might be best to consult a lawyer face-to-face who can drag the pertinent details out into the open and do it much more quickly.

 

[qingya]

It is still unclear.

Normally a B-2 visa is issued for a period of 10 years. Each individual entry will usually be granted authorization to stay for 6 months and this is shown on the I-94. Is the individual really applying for a new B-2 visa? Are you really talking about an interface with ESTA instead?

Did she have a B-2 visa initially good for multiple entries over a 10 year period BUT only used it once when it was about to expire?

You see now how this "case-specific" uncertainty works? Your replies just add to the confusion and prompt more questions. It might be best to consult a lawyer face-to-face who can drag the pertinent details out into the open and do it much more quickly.

Sorry, let me try again to fill in the unknowns.

The original B2 is only good for one year and needs to get a new one
this time. It is like going thru the application all over again and not sure
how previous records would affect the whole thing now.

Thank you very much.

 

[BigJoe5]

Sorry, let me try again to fill in the unknowns.

The original B2 is only good for one year and needs to get a new one
this time. It is like going thru the application all over again and not sure
how previous records would affect the whole thing now.

Thank you very much.

There is little chance of success. They gave her a "chance" once already and she blew it.