How to Change Visa to Allow Re-Entry (from returning to US after vacation in Italy)

[JimVaPhuong 4,863]

http://www.uscis.gov/USCIS/Resources/C1en.pdf

Upon further reading and discussion with someone who extended her own stay for 6 additional months on a B-2 visa I see that I am right in my initial observation. My mother in law can indeed extend her B-2 stay by filling out the form I-539.

This brings me back to my original question, to which I will hopefully get an answer when I call the USCIS customer service number tomorrow: can I get the visa changed, upon extension of the visa, to a multi-entry visa?

Wish me luck!

Once again, the I-539 is not used for requesting an extension to a visa. It's used for requesting an extension of authorized stay, or changing from one non-immigrant category to another. It's critical you understand the difference.

US Department of State has the statutory authority to issue and control visas. US Department of Homeland Security has the statutory authority to control the admission of non-immigrants into the United States, and to determine their length of stay. US consulates work for the Department of State. USCIS works for the Department of Homeland Security. USCIS does not have the statutory authority to change the terms of a visa. Your mother-in-law needs to ask the consulate if she can get a multiple entry visa, and she needs to do this before she comes to the US. Asking USCIS to change a visa is like asking the Social Security Administration for an extension to file your income taxes.

Understand that form I-539 is a request. Your MIL will need to describe why she wants to extend her stay, what financial arrangements have been made to support her during her stay, what compelling reasons remain for her to return to her home country at the end of her stay, and how her resident status in her home country will be affected by her extended stay. If USCIS suspects immigrant intent then they'll deny the extension. This actually happens quite a lot. Whether or not she gets the extension depends very much on what evidence you present, and how it's presented.

There's a bit of gauntlet for visitors to the US regarding immigrant intent. They must first pass the scrutiny of the US consulate in order to get a visa. If the consulate isn't convinced they'll return when they're supposed to then they'll deny the visa. Next they have to pass the scrutiny of CBP when applying to enter the US. If CBP doesn't believe they'll return when they're supposed to then they'll deny entry, and put the alien on the next plane home, despite their having a valid visa. If they decide to try to extend their stay then they must pass the scrutiny of USCIS. At this point, the immigrant intent bar has been raised by the fact that they're trying to stay in the US longer than they were initially admitted for. If USCIS isn't convinced they'll leave when they're supposed to then they'll deny the extension. If the alien's authorized stay has expired at that point then their visa will be canceled - they won't be able to return without getting another visa.

The consulate has already given your MIL a restricted B2 visa. In all likelihood, they did this because they suspected she might try to immigrate during her visit. In their eyes, the risk is real. Your MIL could decide just to stay in the US until your wife becomes a US citizen. At that point, she'd be eligible for classification as an immediate relative of a US citizen, and she could apply for a green card even if her non-immigrant status had already expired. There is an exception carved out in immigration law that permits this, but it's illegal to enter the US with a non-immigrant visa if you have the preconceived intent to use this exception. The consulate apparently suspects it. Either CBP or USCIS may also suspect it. Getting an extension of stay is not a slam dunk. There's a real chance it will be denied.

[D & M 0]

No, it's definitely not an extension of the visa.

You're confusing two different things here. The visa allows her to enter the US. That's all. She'll be granted a period of authorized stay when she enters. The I-94 she fills out will be stamped by CBP with the entry date and length of authorized stay. The class of entry will also be written on the I-94 (e.g., B2 in this case). How long she can stay in the US is determined by the dates stamped on the I-94 - not by the validity of her visa. Most B2 visas are valid for 10 years, but CBP never grants 10 years of authorized stay to someone with a B2. The statutory maximum is 1 year, and six months is the most common. Your MIL was apparently given a much shorter duration B2. The consular officer has the discretion to do this if they are suspicious. The other option would have been for them to deny the visa altogether.

The I-539 is for requesting an extension of the period of authorized stay, or for requesting a change to a different non-immigrant status. It's not for extending the validity of the visa. There is also no need to extend the validity of a visa while the alien is in the US because the visa is used for entering only. As explained above, the visa doesn't determine the length of stay. Once outside the US, an alien would have to go to a US consulate if their visa is expired. Consulates don't usually extend a B2 visa. They just issue a new visa with a new expiration date.

If the consulate issued a single entry B2 then they probably weren't satisfied that she has sufficient ties to her home country, and suspected she might try to immigrate if allowed to enter the US. They decided to give her a chance and allow her to enter one time. It's highly unlikely she could go back to the consulate now and have the visa changed to a multiple entry visa. The consulate has already basically said "no" to what she's wanting to do.

So when they stamp the visa at the airport, THAT is when we know her permitted length of stay? So 6 months is the norm, eh? How can we tell, before they stamp it, how long she can stay in the US?

We don't intend to do the i-539 as it does seem those are often denied.

Edited March 4, 2011 by D & M

[ryna 132]

I don't know if this was mentioned but on top of that, even if she did request and receive an extension of her authorized stay on here, leaving and going to Italy would terminate that "stay" early. It isn't an extension of being allowed to come and go, only an extension to remain in the US beyond the original stay granted at the POE. Is this not correct?

[Boiler 43,429]

IMO technology is a much bigger part of that.

Not so sure. Where I am there was no permanent population until about 150 years ago.

One of the towns nearby when it incorporated included one rule - no Chinese or Italians. At least you could not call them racist.

It does take several generations, too many too soon an you have what is happening in Europe.

[JimVaPhuong 4,863]

So when they stamp the visa at the airport, THAT is when we know her permitted length of stay? So 6 months is the norm, eh? How can we tell, before they stamp it, how long she can stay in the US?

We don't intend to do the i-539 as it does seem those are often denied.

On the plane they'll give her an I-94 form. She'll fill out both the upper and lower parts of the form and hand them to the immigration officer when she arrives. If the immigration officer admits her to the US then he'll tear off the upper portion of the I-94 and keep it, stamp the lower portion of the I-94 with her arrival date, write the class of admission and the date her stay expires in the stamped area of the I-94, and staple the I-94 stub into her passport. Since she's got a single entry visa he'll also stamp the visa with the arrival date, effectively canceling the visa.

So, she'll know how long she's been admitted when the immigration officer writes the expiration date on her I-94. There's no way to know beforehand because it's entirely up to the discretion of the immigration officer. Six months is what they usually allow, but there are a number of other scenarios that could happen. If they suspect she intends to immigrate then they may drag her into secondary inspection and drill her with questions for an hour or two. They may choose to deny her entry and put her on the next plane back. They may choose to admit her, but shorten her authorized stay to only a month or two. She won't find out until she gets here.