I 94 not expired and I 539 decision pending.

[Teddy B 17,252]

1 hour ago, geowrian said:

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.

According to USCIS themselves, the information in your links is incorrect. Even the lawyers in your links contradict one another. And AOS is a totally different case from an I-539.

 

Quote

 

What if I file for an extension of stay on time but USCIS

doesn’t make a decision before my I–94 expires?

Your lawful nonimmigrant status ends, and you are out of status,

when your Form I-94 expires, even if you have timely applied to extend your nonimmigrant status. Generally, as a matter of discretion, USCIS will defer any removal proceedings until after the petition is adjudicated and USCIS decides your request for extension of nonimmigrant status. Nevertheless, DHS may bring a removal proceeding against you, even if you have an application for extension of status pending.

Even though you are not actually in a lawful nonimmigrant

status, you do not accrue “unlawful presence” for purposes of inadmissibility under section 212(a)(9)(B) of the Immigration and Nationality Act, while your extension of status application is pending if it was filed prior to the expiration of your Form I-94.

https://www.uscis.gov/sites/default/files/USCIS/Resources/C1en.pdf

 

 

Edited April 27, 2017 by Teddy B

[geowrian 22,344]

44 minutes ago, Teddy B said:

According to USCIS themselves, the information in your links is incorrect. Even the lawyers in your links contradict one another. And AOS is a totally different case from an I-539.

I don't think they are conflicting as they are talking about different circumstances from the USCIS quote. I didn't say or mean suggest that all the lawyers agreed exactly, but they all agreed that a denied application becomes an overstay. The majority noted the overstay is form the I-94 expiration. Two said it was after the denial. One said it was after the visa expires (which I'm assuming he meant to say I-94 as the visa obviously has no impact here).

 

That quote from USCIS applies only while the application is pending, not once denied. While AOS is another beast, they use the same wording there about not accruing unlawful presence while it is pending.

 

Edit: Anyway, I think we are getting off topic here. OP received the necessary information to proceed.

Edited April 27, 2017 by geowrian

[Teddy B 17,252]

10 minutes ago, geowrian said:

I don't think they are conflicting as they are talking about different circumstances from the USCIS quote. I didn't say or mean suggest that all the lawyers agreed exactly, but they all agreed that a denied application becomes an overstay. The majority noted the overstay is form the I-94 expiration. One said it was after the denial. One said it was after the visa expires (which I'm assuming he meant to say I-94 as the visa obviously has no impact here).

 

That quote from USCIS applies only while the application is pending, not once denied. While AOS is another beast, they use the same wording there about not accruing unlawful presence while it is pending.

First of all the lawyers in your links were all wrong, so I'm not sure why you're arguing whether or not they contradicted each other. The lawyers did contradict each other on when the illegal presence actually starts, but they were all wrong in that unlawful presence starts at all. It doesn't matter so much when the I-94 expires, the key is filing for the extension before it does. The I-94 can expire while the decision is pending and it doesn't affect the status of the applicant.

 

Secondly, In the bolded part, you are now changing what you said previously. You have created a different scenario than was previously being discussed.

 

I suggest you read this USCIS field manual I've linked below (especially pages 6 & 9), on what constitutes unlawful presence. And as a side note, when a person files for AOS before their I-94 expires, they too are protected from accruing unlawful presence. the only time they would be in unlawful presence is if they filed for AOS AFTER their I-94 expired.

 

Link to USCIS Field Manual: USCIS Field Manual

Edited April 27, 2017 by Teddy B

[geowrian 22,344]

17 minutes ago, Teddy B said:

First of all the lawyers in your links were all wrong, so I'm not sure why you're arguing whether or not they contradicted each other. The lawyers did contradict each other on when the illegal presence actually starts, but they were all wrong in that unlawful presence starts at all. It doesn't matter so much when the I-94 expires, the key is filing for the extension before it does. The I-94 can expire while the decision is pending and it doesn't affect the status of the applicant.

 

Secondly, In the bolded part, you are now changing what you said previously. You have created a different scenario than was previously being discussed.

 

I suggest you read this USCIS field manual I've linked below (especially pages 6 & 9), on what constitutes unlawful presence. And as a side note, when a person files for AOS before their I-94 expires, they too are protected from accruing unlawful presence. the only time they would be in unlawful presence is if they filed for AOS AFTER their I-94 expired.

 

Link to USCIS Field Manual: USCIS Field Manual

Sure, they're all wrong. That's your opinion and I will respect it. I will disagree with it barring evidence showing otherwise.

 

The scenario has not changed.

[Teddy B 17,252]

2 minutes ago, geowrian said:

Sure, they're all wrong. That's your opinion and I will respect it. I will disagree with it barring evidence showing otherwise.

 

The scenario has not changed.

I already gave you the evidence in my previous posts, twice in fact. You should seriously read the link I provided to the USCIS fild manual too.

 

Here it is again.

 

Quote

What if I file for an extension of stay on time but USCIS

doesn’t make a decision before my I–94 expires?

Your lawful nonimmigrant status ends, and you are out of status,

when your Form I-94 expires, even if you have timely applied to extend your nonimmigrant status. Generally, as a matter of discretion, USCIS will defer any removal proceedings until after the petition is adjudicated and USCIS decides your request for extension of nonimmigrant status. Nevertheless, DHS may bring a removal proceeding against you, even if you have an application for extension of status pending.

Even though you are not actually in a lawful nonimmigrant

status, you do not accrue “unlawful presence” for purposes of inadmissibility under section 212(a)(9)(B) of the Immigration and Nationality Act, while your extension of status application is pending if it was filed prior to the expiration of your Form I-94.

https://www.uscis.gov/sites/default/files/USCIS/Resources/C1en.pdf

 

 

[Boiler 48,104]

No harm applying for an extension if you have no lans for a re visit any time soon.

 

Not sure why you would want to withdraw your application, would put you out of status.

 

 

[jagmeet singh 0]

so i guess i would do nothing at this point.

 

My mother is going to leave before her I 94 expires on May 10th.

 

I am happy that her 10 year B2 visa would not be void regardless of the outcome of I 539 extension.

 

She has no plans to re-visit any time soon, maybe next year.

 

I appreciate all the feedback given.

[Hypnos 6,579]

You can retroactively accrue overstay even with a pending I-539 to extend your nonimmigrant status if USCIS deny the I-539 and make a finding that your application was "frivolous", or that you were found to have worked illegally on a visa that doesn't permit employment. This doesn't happen often, but is there so people can't make silly I-539 applications just to keep their legal status for a few more months as the I-539 is processed. Most of the time if an I-539 is denied then you are given 30 days to depart the US from the date of denial before you're considered to be overstaying.

 

https://www.shusterman.com/unlawfulpresenceeoscos/

 

"Denied applications. (i) Denial of Timely Filed Applications and Frivolous Applications; Unauthorized Employment. If the timely filed C/S or E/S application is denied because it was frivolous or because the alien engaged in unauthorized employment, any and all time after the Form I-94 expiration date will be considered unlawful presence, if the alien was admitted until a specific date. If, however, the alien was admitted D/S, unlawful presence begins accruing on the date of the Service’s decision."

 

Also, if you file an untimely I-539 (i.e. you apply for an extension after your period of authorised stay has already expired) and the application is denied for any reason then you accrue overstay from the date your I-94 expired, not the date of denial.

 

"Denial of Untimely Applications. If the application was untimely and was denied, unlawful presence begins accruing on the date the I-94 expired, regardless of the reason for denial. For aliens admitted D/S, unlawful presence begins accruing on the date of denial."

Edited April 28, 2017 by Hypnos

[Teddy B 17,252]

3 hours ago, Hypnos said:

You can retroactively accrue overstay even with a pending I-539 to extend your nonimmigrant status if USCIS deny the I-539 and make a finding that your application was "frivolous", or that you were found to have worked illegally on a visa that doesn't permit employment. This doesn't happen often, but is there so people can't make silly I-539 applications just to keep their legal status for a few more months as the I-539 is processed. Most of the time if an I-539 is denied then you are given 30 days to depart the US from the date of denial before you're considered to be overstaying.

 

https://www.shusterman.com/unlawfulpresenceeoscos/

 

"Denied applications. (i) Denial of Timely Filed Applications and Frivolous Applications; Unauthorized Employment. If the timely filed C/S or E/S application is denied because it was frivolous or because the alien engaged in unauthorized employment, any and all time after the Form I-94 expiration date will be considered unlawful presence, if the alien was admitted until a specific date. If, however, the alien was admitted D/S, unlawful presence begins accruing on the date of the Service’s decision."

 

Also, if you file an untimely I-539 (i.e. you apply for an extension after your period of authorised stay has already expired) and the application is denied for any reason then you accrue overstay from the date your I-94 expired, not the date of denial.

 

"Denial of Untimely Applications. If the application was untimely and was denied, unlawful presence begins accruing on the date the I-94 expired, regardless of the reason for denial. For aliens admitted D/S, unlawful presence begins accruing on the date of denial."

It all depends on if the application for extension was filed before the I-94 expires. According to page 6 of the USCIS Field Manual if the I-539 application was received before the I-94 expired no overstay can be accrued, even for frivolous applications, unauthorized employment or continuous bridge filings of I-539 applications.

 

I can't get the page to copy here, but here is the link to the manual. USCIS Field Manual

 

 

 

Edited April 28, 2017 by Teddy B

[Teddy B 17,252]

Here is the wording from page 6 of the USCIS Field Manual:

 

Edited April 28, 2017 by Teddy B

[Hypnos 6,579]

Interesting. I guess the policy was changed.