i539 b2 biometrics scheduled, but person left country

[dirk_diggler 107]

The following is the scenario:

 

1.  Person entered U.S. on B2 in 1/2020, I94 grants 6 month stay

2.  i539 filed (w/ associated proof, documents, etc) prior to the i94 date

3.  Person leaves in 11/2020, while i539 pending

4.  Biometrics appointment scheduled in 7/2021

 

I have read some similar stories here about this scenario.  I just want to confirm that this plan is reasonable:

 

1.  Change address online for the person, showing that they are out of the country

2.  Send certified letter to the Texas Service Center (they are processing this i539) stating that the person has left the country w/ associated proof

3.  Send certified letter to the ASC stating that a biometrics appointment is not required as the person has left the country w/ associated proof

 

What do you all think about these 3 actions?  Anything that I'm missing?

 

Note: I understand that the likely conclusion is that the i539 will be denied as the person has left the country and therefore the B2 is invalid.  I'm not too concerned with that as they have another unrelated petition pending.

[dirk_diggler 107]

(Duplicated by mistake)

Edited June 5, 2021 by dirk_diggler

[Crazy Cat 41,981]

I think you are correct.  The minute that extension is denied, the 4-5 month overstay will void the B2 automatically.  Your actions were not really necessary. 

[Bajinga 136]

if they left the US before decision on i-539, the. i-539 is considered abandoned and the visa is not void. they should carry the I-539 receipt to show that it was filed before the I-94 expiry date and proof that they left the US before the decision was made, next time they attempt to enter US. make sure there is enough gap before the next attempt to enter and off course next admission will be at the CBP discretion, expect some scrutiny. FYI, i could not find the USCIS official source on this, here is a post on Nolo
https://www.avvo.com/legal-answers/leaving-us-while-i-539-is-still-pending--b2-visa-5083976.html

Edited June 5, 2021 by Bajinga

[dirk_diggler 107]

57 minutes ago, Lucky Cat said:

I think you are correct.  The minute that extension is denied, the 4-5 month overstay will void the B2 automatically.  Your actions were not really necessary. 

The extension hasn't been denied yet, but I expect it to be so when USCIS doesn't reschedule the biometrics

[Crazy Cat 41,981]

52 minutes ago, Bajinga said:

if they left the US before decision on i-539, the. i-539 is considered abandoned and the visa is not void. they should carry the I-539 receipt to show that it was filed before the I-94 expiry date and proof that they left the US before the decision was made, next time they attempt to enter US. make sure there is enough gap before the next attempt to enter and off course next admission will be at the CBP discretion, expect some scrutiny. FYI, i could not find the USCIS official source on this, here is a post on Nolo
https://www.avvo.com/legal-answers/leaving-us-while-i-539-is-still-pending--b2-visa-5083976.html

What about the 4-5 month overstay?   The person departed 4-5 months after the original I-94 expired    The B2 will be voided. 

 

https://www.nolo.com/legal-encyclopedia/how-extend-your-stay-change-your-status-while-b-visa.html

Edited June 5, 2021 by Lucky Cat

[Bajinga 136]

 @Lucky Cat I think the portion you quoted above only applies while the person who filed the extension is still in the US. if they leave while EOS was pending USCIS is technically supposed to consider the application abandoned. my understanding from the readings of similar threads for example the one below is that the decision on I-539 is irrelevant if the alien leaves while the application is pending. 

 

[SusieQQQ 11,586]

The problem with this situation with i539 is we have seen no consistency in practice. We have seen reported in this forum people who both have and haven’t had their visas revoked when denied after they have left, and we have seen people approved after they have left (which theoretically is not possible as the application is supposed to be deemed abandoned if you leave before adjudication). We have even seen one who was approved after leaving and still had his visa revoked. So imo you don’t know what’s going to happen until it’s happened 🤷‍♀️ 

[Chancy 6,241]

*** Old thread locked to further comment.  Hijack post split into a new thread in this forum. ***

 

Edited August 11, 2023 by Chancy