[jsnearline]

I just checked the case status system today and found out my mother-in-law's I-539 was denied yesterday. Does anyone know what the rammifications are going to be because of this?

I read some posts on other forums that indicate that she is now out of status and her multi-entry visa is cancelled because her I-94 expired while they were processing her case.

It doesn't seem fair to me that she would be penalized with an overstay because USCIS took their time processing her case and issued a decision well after her I-94 expired.

I suppose this policy could be a deterrent against filing for an extension without ironclad evidence. If everyone could get five or six months additional status by simply applying for an extension, I'm sure more people would do it. In our case I don't know what more we could have done. We sent an inch thick file in response to an RFE and we still got denied.

We made an InfoPass appointment for Friday morning to see if we can negotiate an acceptable departure date. My wife is worried that her mom will be arrested and deported if she goes to the appointment. I would hope that would not do that since we're trying to be proactive and comply with the decision.

Any thougthts on whether we should do the InfoPass or just put Mom on the first available flight back to Manila?

Edited by jsnearline, 22 October 2008 - 11:18 PM.

[Mononoke28]

She won't be deported but she will most likely not be allowed to come back again with a tourist visa since due to her overstay.

Diana

Edited by Mononoke28, 23 October 2008 - 12:22 PM.

[Boiler]

She just needs to aply fo another B, she should have the information with her supporting the validity of her request for an extension.

[jsnearline]

We went for InfoPass today and we were told that her 10 year visa should not be affected by the denial as long as she leaves within 30 days of the date on the denial notice.

Can anyone point me to anything official and somewhat recent that would indicate her visa is automatically cancelled because of the denial?

When I called USCIS the other day, they told me I might want to talk to the National Visa Center.

[Boiler]

Staying unlawfully in the United States beyond the date Customs and Border Protection (CBP) officials have authorized--even by one day--results in your visa being automatically voided, in accordance with INA 222(g). Under this provision of immigration law, if you overstay on your nonimmigrant authorized stay in the U.S., your visa will be automatically voided. In this situation, you are required to reapply for a new nonimmigrant visa, generally in your country of nationality.

[Mononoke28]

Staying unlawfully in the United States beyond the date Customs and Border Protection (CBP) officials have authorized--even by one day--results in your visa being automatically voided, in accordance with INA 222(g). Under this provision of immigration law, if you overstay on your nonimmigrant authorized stay in the U.S., your visa will be automatically voided. In this situation, you are required to reapply for a new nonimmigrant visa, generally in your country of nationality.

That's correct, otherwise, everybody and their mother would overstay their visas all the time for x amount of reasons.


Good luck with everything!!

Diana

[payxibka]

We went for InfoPass today and we were told that her 10 year visa should not be affected by the denial as long as she leaves within 30 days of the date on the denial notice.

Can anyone point me to anything official and somewhat recent that would indicate her visa is automatically cancelled because of the denial?

When I called USCIS the other day, they told me I might want to talk to the National Visa Center.

I would not trust any advice from the USCIS regarding this considering that they have nothing to do with visa issuance or compliance thereof......

[jsnearline]

I just sent an email to the National Visa Center asking for clarification on the visa cancellation.

I don't see why the USCIS doesn't put a warning on the I-539 form informing the applicant that if they lose the case and their I-94 has expired by the time the case is processed that their visa will be cancelled. If we had known this up front, we would either would have not filed the extension at all or we would have sent my mother-in-law home in June when we realized we would not get a decision before her I-94 expired. I can understand why it works that way, but it would be nice if they put something about the negative consequences of a denial in the form instructions.

[Boiler]

The way the US system works, generally you do not rely on Governmental bodies for advice, and if you do they have no obligation to provide the correct advice.

Odd exceptions, but as far as I know, none of them on the Immigration etc side.

To be fair the same principal applies when seeking other forms of beneift, generally speaking you have to succeed, or there are consequences.

[jsnearline]

I just got the denial notice. The reason for denial was because my mother-in-law stated that one of her intentions was to help my wife care for our baby while I recover from throat surgery. It said that provding childcare may be considered employment even if there is no direct compensation. It then stated that since this was the "predominant reason given, the case was denied.

When we were sent an RFE in August, we were asked to provide information pertaining to the date of the surgery. I sent an updated clinic note from my doctor that stated that surgery was postponed indefinitely while we tried to treat with medication.

Even if the surgery had occurred, the clinic note indicated my recovery time would be only two weeks. How does two weeks out of six months constitute a predominant reason? My mother-in-law did list it as the first reason in her original justification narrative, but she wrote the letter chronologically, not based on the importance of the reasons.

The evidence we sent indicated that the surgery would not take place after all during the extension. That would have mitigated the possibility that my mother-in-law would have engaged in employment. So, it seems to me that the USCIS asked for additional evidence and then rendered a decision that was not really based on the evidence we provided them.

To make things worse, the date on the denial letter was October 21st. However, the USCIS notated her I-94 to indicate the case was denied September 25th, making her out of status time worse than it really should be.

Since the decision appears to be one where USCIS had discretion and it could have gone the other way, is there a way to file a motion to reconsider?

[Boiler]

The reason for denial was that she never had a legitimate reasons for an extension in the first place.

You componded it by implying she would be working.

[jsnearline]

Actually, the other reasons we stated, sightseeing and visiting family, would be legitimate. They chose to focus on the one reason at the expense of the others.

The thing is that I called the NCSC before we applied, told them what our reasons were going to be and asked whether we should apply for a extension or an adjustment to a non immigrant domestic servant. I was told to apply for the B2 extension. It just goes to show I can't trust a word they say. I should have consulted an attorney.

[Boiler]

A legitimate reason would be you were in Hospital and could not be moved and had a Doctor's letter in support.

Actually, the other reasons we stated, sightseeing and visiting family, would be legitimate. They chose to focus on the one reason at the expense of the others.

Non immigrant Domestic servant? I have no idea what category that could be, there are certain limited circumstances but none that obviously match.

The thing is that I called the NCSC before we applied, told them what our reasons were going to be and asked whether we should apply for a extension or an adjustment to a non immigrant domestic servant. I was told to apply for the B2 extension. It just goes to show I can't trust a word they say.

Yes

I should have consulted an attorney.

[jsnearline]

The visa category for domestic servant is defined in the I-539 instruction as:

B-1B, nonimmigrant domestic servant of a U.S. citizen

As for acceptable reasons to extend, the wording of the denial indicated that it would have been approved if she had limited her reasons for staying to visiting family and tourism. The red flag was the desire to help take care of her grandson.

[Boiler]

The visa category for domestic servant is defined in the I-539 instruction as:

B-1B, nonimmigrant domestic servant of a U.S. citizen

As for acceptable reasons to extend, the wording of the denial indicated that it would have been approved if she had limited her reasons for staying to visiting family and tourism. The red flag was the desire to help take care of her grandson.

In order to be classifiable as a B-1 domestic servant, an alien must meet these requirements:

Accompany or follow to join U.S. citizen employers who have a permanent home or are stationed in a foreign country and who are visiting the United States temporarily.

The employer-employee relationship existed prior to the commencement of the employer’s visit to the United States.

I have certainly seen it mentioned that filing for an extension when your cause is weak is worthwhile, as long as you are prepared to live with the consequences, keeps you in status.