Travel on ESTA after previous i-539 COS denial

[delia909 0]

Hi there, 

 

I recently finished a j1 visa and filed an i-539 to change to a b2 before my time was up. I stayed on a further 3 months after finishing my j1 and then returned home in line with the dates given on my i-539. I then received a denial notice a month later saying it had been denied due to abandonment. I would like to return to the us for a week to go to a wedding and am wondering if my denial means my time counts as an overstay or not? I had D/S on my i-94. I am unsure how to answer the ESTA question about staying longer than authorized by the government, but my application was timely and USCIS did not give any other reason other than abandonment in my denial letter.

 

Or am I better to apply for a B2? I feel this makes it look like I'm trying to return for longer but I literally just want to go to the wedding and leave.

 

Thanks!

[Just Observing 34]

A timely filed nonfrivolous extension allows one to stay In what is called period of authorized stay by the Attorney General, until the petition is adjudicated. Keep in mind, a period of authorized stay is not the same as lawful status.

 

For a J visa holder, typically you begin to accrue unlawful presence the day after completely a course of study or program (including practical training, plus grace period);

 

In your case you didn’t accumulate any unlawful presence however you were no longer in lawful status after completing your program. You could argue that you did not stay longer than authorized by the government because after all, the attorney general is an authorized agent of the government.

 

Note that an aggressive immigration officer could deny you entry by arguing the alternative, that your ESTA (if approved) was obtained by misrepresentation because of how you answered that question.

 

If you decide to go the ESTA route, have references to the USCIS policy to make your case if questioned. If however you have a strong visa applicant profile, applying for and being issued a visa will essentially cure that problem.

[SusieQQQ 11,584]

Official policy is that if a change of status is denied, the overstay is counted from the date that the original i94 expires. They do not distinguish what the basis of denial is. That is why one should withdraw, not just abandon, a COS application if you decide to leave during adjudication. So OP if you left after your original i94 expired, yes you overstayed, even though you didn’t accrue unlawful presence (as the poster above observes).

 

 

“Your lawful nonimmigrant status ends and you are out of status when your Form I-94 expires, even if you have timely applied to change your nonimmigrant status. Generally, as a matter of discretion, USCIS will defer any removal proceedings until after the petition is adjudicated...”  https://www.uscis.gov/sites/default/files/USCIS/Resources/C1en.pdf

 

Edited May 25, 2019 by SusieQQQ