I 94 not expired and I 539 decision pending.

[jagmeet singh 0]

Hi Team,

 

My mother is on B2 visa here, and I 94 is expiring on May 10th 2017, i applied for her extension I 539 form on March 8th 2017

 

I believe the decision is taking a long time and it would happen after her I94 expires.

 

My mother wants to leave before her I 94 expires and she is going back on May 5th 2017.

 

My question is.

1. What would happen to I 539 application if she leaves now.

2. What would happen to her 10 year B2 visa regardless of what decision is made on I 539? Would it still be valid?

 

Regards

 

Jagmeet Singh

[geowrian 22,341]

1. It would be abandoned (not that it matters since even if it was approved, it's not like she can re-enter and use that anyway).
2. The underlying visa will be unaffected.

She is permitted to stay in the US while her extension is pending. However, if it is denied, then she will have accrued overstay starting from when the I-94 expired.

Edited April 27, 2017 by geowrian

[jagmeet singh 0]

Thanks a lot for the response.

[Jojo92122 1,925]

1.  The US Government will continue to process the request unless she withdraws it.

 

2.  A denied extension could result in the cancellation of her visa.

 

It would be best to send in a request to withdraw with details of her planned departure before the expiration of her I-94.

[geowrian 22,341]

 

17 minutes ago, Jojo92122 said:

1.  The US Government will continue to process the request unless she withdraws it.

 

2.  A denied extension could result in the cancellation of her visa.

 

It would be best to send in a request to withdraw with details of her planned departure before the expiration of her I-94.

1) Are you sure it's not automatically abandoned?
"Departure from the U.S. while the properly filed non-frivolous extension of status application is pending is considered abandonment of the application."

 

2) Assuming you are correct about #1 and it is not automatically abandoned, this is correct. The denial itself won't result in any visa issues (at least form any documentation I could find), but an overstay caused by the denial could put it at risk.

[Jojo92122 1,925]

1.  Yes.  My aunt left the US while her extension application was pending and her approved extension arrived months later.

 

2.  There is always a risk for adverse future consequences when there is a denial for an extension.  Since we do not have exit control in the US, CBP will see a denied extension and have no idea when she left.  This can create problems with future entry.

 

It's a simple solution to just send in a request to withdraw to create a paper trail.  Better safe than sorry.

 

 

[geowrian 22,341]

5 minutes ago, Jojo92122 said:

It's a simple solution to just send in a request to withdraw to create a paper trail.  Better safe than sorry.

Agreed - better safe than sorry.

[Teddy B 17,252]

2 hours ago, geowrian said:

1. It would be abandoned (not that it matters since even if it was approved, it's not like she can re-enter and use that anyway).
2. The underlying visa will be unaffected.

She is permitted to stay in the US while her extension is pending. However, if it is denied, then she will have accrued overstay starting from when the I-94 expired.

The part in bold is incorrect. If her request for extension is denied she will be given a certain amount of time to leave the US, usually a week or two. There is no accrued overstay as long as she leaves by the exit date given by USCIS on her I-539 denial. Whenever someone files for an extension of stay they are allowed to stay in the US legally until they receive a decision from USCIS with an exit date. They can not allow someone to stay in the US legally while their decision is pending and then back charge them with overstay if they decide to deny the application.

Edited April 27, 2017 by Teddy B

[Teddy B 17,252]

1 hour ago, Jojo92122 said:

1.  Yes.  My aunt left the US while her extension application was pending and her approved extension arrived months later.

 

2.  There is always a risk for adverse future consequences when there is a denial for an extension.  Since we do not have exit control in the US, CBP will see a denied extension and have no idea when she left.  This can create problems with future entry.

 

It's a simple solution to just send in a request to withdraw to create a paper trail.  Better safe than sorry.

 

 

What do you mean we don't have exit control in the US? There are I-94 records kept by the airlines and by CBP at land crossings of every entry and exit. They know exactly when you've left. If we didn't have exit control, how could they ever prove if someone overstayed?

Edited April 27, 2017 by Teddy B

[Jojo92122 1,925]

7 minutes ago, Teddy B said:

What do you mean we don't have exit control in the US? There are I-94 records kept by the airlines and at land crossings of every entry and exit. They know exactly when you've left.

When I exit foreign countries, I see an immigration officer that scans my passport and inspect my visa.  That's exit control.  We don't have that in the US when visitors leave.  You check in with the airline, you show your passport and ticket to TSA, and then you get on the plane.  There is no exit control with an immigration officer.

 

What the airline submits to the US Government is a mess.  

 

Google "How does CBP know I left the US."

[Teddy B 17,252]

.

Edited April 27, 2017 by Teddy B

[Teddy B 17,252]

11 minutes ago, Jojo92122 said:

When I exit foreign countries, I see an immigration officer that scans my passport and inspect my visa.  That's exit control.  We don't have that in the US when visitors leave.  You check in with the airline, you show your passport and ticket to TSA, and then you get on the plane.  There is no exit control with an immigration officer.

 

What the airline submits to the US Government is a mess.  

 

Google "How does CBP know I left the US."

Saying something is a mess does not equate to it not existing at all, nor does it mean that it is in fact a mess. There is exit control in the US, if you want to debate it's effectiveness feel free to start a thread about it.

 

 

Edited April 27, 2017 by Teddy B

[geowrian 22,341]

9 minutes ago, Teddy B said:

The part in bold is incorrect. If her request for extension is denied she will be given a certain amount of time to leave the US, usually a week or two. There is no accrued overstay as long as she leaves by the exit date given by USCIS on her I-539 denial. Whenever someone files for an extension of stay they are allowed to stay in the US legally until they receive a decision from USCIS with an exit date. They can not allow someone to stay in the US legally while their decision is pending and then back charge them with overstay if they decide to deny the application.

The so-called "grace period" is not the same as having a legal status. Yes, you are granted authorized stay while the I-539 is pending. But that doesn't mean that it cannot turn into an overstay. Just like AOS, if it gets denied, you are treated as having overstayed since the end of your existing status. Otherwise, anybody filing for an extension would have the effect of having been granted the stay (at least up until the time a decision is made).

 

https://www.avvo.com/legal-answers/i539-pending-i94-expires-soon--if-i539-gets-denied-1089448.html

http://www.lawqa.com/qa/what-will-happen-if-i539-for-b2-extension-denied-and-i94-expired

 

If this is incorrect, then I'm glad to review the evidence showing so.

[jagmeet singh 0]

So do i need to withdraw her extension or does it automatically gets abandoned?

 

The above discussion shows that CBP would know when she left USA.

[Teddy B 17,252]

40 minutes ago, jagmeet singh said:

So do i need to withdraw her extension or does it automatically gets abandoned?

 

The above discussion shows that CBP would know when she left USA.

There is no need to withdraw the extension request. There will be a record of her departure. Even if the extension is approved, by the time she receives the notice she'll probably be home anyway. Usually it takes around 3 months to process an extension request.

 

There is a downside to filing for an extension. If the person filing for the extension intends to travel to the US in the near future, he/she may be denied entry due to over use of the visa.