question about B-2 and overstaying (i-94)

[jan22 2,898]

1 hour ago, aaron2020 said:

It was automatically revoked on the day she overstayed.  

 

https://www.avvo.com/legal-answers/is-an-overstay-of-4-days-on-b1-going-to-void-my-vi-1839929.html

 

Jeff L. Khurgel

Posted on Aug 12, 2014

•  
•  

The day after your I-94 expired your visa was void under 222(g) and you can only apply for a new visa in your home country. If "extraordinary circumstances" circumstances can be proven, you may be allotted an exception to 222(g). With only a four day overstay and proof of medical conditions, this may be doable, however, I would not recommend attempting to enter the US without a detailed discussion with an immigration attorney first...

The "extraordinary circumstances" clause applies only to whether or not the requirement of INA 222 (g) can be waived (i.e., that the person must apply for any new visa in their home country of nationality or their last place of official residence outside the US).  It does not exempt the person from the automaton cancellation if their visa.  Nor does it mean a new visa application cannot be denied -- that is the decision of the consular officer as to whether the applicant meets the requirements for a new visa.  

 

To the OP -- as the US has no in-person official exit control (you do not pass in front of any government official as you depart; it is all done electronically) -- nobody will physically cancel your mother's  visa.  That does not mean it isn't cancelled -- it is cancelled in the computer system.  It is most likely not going to be physically cancelled until she applies for a new visa.  If she tries to use it, she will likely be denied boarding.  If for some reason it isn't caught then, she will be denied entry  and returned home -- having made a exhausting trip and wasted the money for the ticket.  Don't try it -- even if the system fails and she makes it through once (highly unlikely), she will taking a huge risk and the threat will always be hanging over her head.  Not worth it!!

[Dashinka 23,242]

12 hours ago, Boiler said:

Sounds like long enough this year to be tax resident.

That appears to be the case as she has been in the US more than six months according to the OP.

[NYCruiser 423]

19 hours ago, izzi said:

My mum has visiting visa (B2) that is valid till 2020.

she was authorized to stay till dec 12th (I-94), but due to unforeseen circumstances (complications in the birth of my first child, and the airline being (removed) she missed her flight but is scheduled to fly back on the dec 28th (we had to book another return ticket and the 28th was the earliest), 16days after her authorized stay would have expired.

I want to file a I-539 (extend stay) with proof that the airline screwed up and also the birth cert of my child and the new return date tickets. but I can't file an I-539 since she is already overstayed. i just want to let them know the reason she overstayed, since she still has a valid visa till 2020, i don't want a situation where she visits again (prolly in a year from now) and she gets turned back.

Is it necessary to file this or just let her go back on 28th?

 

The Visa is not not valid due to the overstay. Sorry about this.She needs to complete a new DS-160 and state reasons for the overstay. The CO will decide then whether to issue another Visa. 

It is shame she could not have exited the US to say Mexico or Canada and wait until the airline worked things out, then left?

[Mollie09 1,543]

15 hours ago, izzi said:

Lol. I know right

 

Not really a "lol" comment, she's 100% a resident for tax purposes and should file a tax return as a non-resident alien.

[Boiler 43,433]

Well obviously it does not take 16 days to find a flight out of the US, I assumed that was the next convenient one.

Edited December 18, 2018 by Boiler

[javadown2 308]

21 hours ago, izzi said:

My mum has visiting visa (B2) that is valid till 2020.

she was authorized to stay till dec 12th (I-94), but due to unforeseen circumstances (complications in the birth of my first child, and the airline being (removed) she missed her flight but is scheduled to fly back on the dec 28th (we had to book another return ticket and the 28th was the earliest), 16days after her authorized stay would have expired.

I want to file a I-539 (extend stay) with proof that the airline screwed up and also the birth cert of my child and the new return date tickets. but I can't file an I-539 since she is already overstayed. i just want to let them know the reason she overstayed, since she still has a valid visa till 2020, i don't want a situation where she visits again (prolly in a year from now) and she gets turned back.

Is it necessary to file this or just let her go back on 28th?

 

So she was here for 6 months to be here for the birth of her granddaughter, not sure how she allowed her self to miss this flight. What do the airlines have to do with this decision? When was the child born?She could have easily planned to come like 3 months prior to birth and then stay 3 months after if you thought it would be a little late? Bummer what others are saying that she will have to file for a new visa since her's won't be valid any more. 

 

 

[izzi 1]

3 hours ago, Boiler said:

Well obviously it does not take 16 days to find a flight out of the US, I assumed that was the next convenient one.

 

3 hours ago, Boiler said:

Well obviously it does not take 16 days to find a flight out of the US, I assumed that was the next convenient one.

not convenience but in terms of price as well, tickets are usually very expensive this time of year

[Visitor User 236]

Can a family member petition her for green card? There are people staying out a lot during their GC years as long as they qualified for USC. USC can stay out of USA for life.

[Boiler 43,433]

8 minutes ago, izzi said:

 

not convenience but in terms of price as well, tickets are usually very expensive this time of year

Especially at short notice.

[izzi 1]

6 minutes ago, Visitor User said:

Can a family member petition her for green card? There are people staying out a lot during their GC years as long as they qualified for USC. USC can stay out of USA for life.

I can get her a GC (I'm a US citizen), but she has her business to run back home, this option is a last resort.

I imagine if i filed for her, it would take a year before she gets it, just weighing all our options.

currently leaning towards her going back, waiting a year before applying for another visa.

[Lil bear 3,831]

8 minutes ago, izzi said:

I can get her a GC (I'm a US citizen), but she has her business to run back home, this option is a last resort.

I imagine if i filed for her, it would take a year before she gets it, just weighing all our options.

currently leaning towards her going back, waiting a year before applying for another visa.

Green cards are for living permanently in the US.. not a way out of a visa overstay . 

[SusieQQQ 11,584]

1 hour ago, izzi said:

 

not convenience but in terms of price as well, tickets are usually very expensive this time of year

Better not mention to the visa officer that tickets to leave the US on time are too expensive, that will probably get her next visa denied immediately. To be blunt, if all you can come up with are excuses like this, her chances of getting another B visa - already endangered by her overstay - are going to get slimmer and slimmer. I’m beginning to think that you really don’t understand how seriously the US considers overstays. We’ve seen here cases of people having visas cancelled and next ones denied because they overstayed by a less than a day due to a weather delay on a flight. 

[WeGuyGal 1,052]

13 hours ago, izzi said:

 

not convenience but in terms of price as well, tickets are usually very expensive this time of year

vs.. the hassle and cost of an overstay/ new visa? 

[SusieQQQ 11,584]

25 minutes ago, WeGuyGal said:

vs.. the hassle and cost of an overstay/ new visa? 

I think it’s clear from OP’s original post and even later ones that she doesn’t understand how serious an overstay is considered. The fact that they didn’t even bother filing for an extension until after the original i94 expired also indicates that.  I think sometimes the fact that overstays are forgiven for IRs leads to people not comprehending how serious this is for non-immigrants and non-USC family member immigrants.

Edited December 19, 2018 by SusieQQQ

[WeGuyGal 1,052]

2 hours ago, SusieQQQ said:

I think it’s clear from OP’s original post and even later ones that she doesn’t understand how serious an overstay is considered. The fact that they didn’t even bother filing for an extension until after the original i94 expired also indicates that.  I think sometimes the fact that overstays are forgiven for IRs leads to people not comprehending how serious this is for non-immigrants and non-USC family member immigrants.

Sad that an overstay could be viewed so casually, esp by IRs. smh