B2 Visa Extension Request

[waqaqisa 0]

Hello Team,

My mother-in-law is in US with B2 visa. She came in US on 11/28/2020. So her I-94 authorized stay was for 6months till 05/27/2021. We applied for her extension for another 6 months till 11/27/2021. We haven’t received any approval from USCIS. However, she missed one biometric appointment due to medical reason. Now we are planning to extend her stay for another few moths beyond 11/27/2021. I have heard the suggested time for filing the extension would be at least 40days prior to the date before expiry. Is it fine if we file the extension now?

Appreciate a quick response here.

[SusieQQQ 11,587]

Chances of approval beyond the initial six month request are just about zero, even if the first gets approved.
 

Was there not a note on the bio notice saying the application would be abandoned if she did not appear, as there is on other bio notices?

[arken 4,197]

24 minutes ago, SusieQQQ said:

Was there not a note on the bio notice saying the application would be abandoned if she did not appear, as there is on other bio notices?

This.

 

38 minutes ago, waqaqisa said:

she missed one biometric appointment due to medical reason

She missed not just one appointment but the only appointment required for processing. Did she not request for rescheduling? If not, then the first request will be denied even if it is processed before 11/27. Denial of first extension will invalidate the 2nd extension and so will be automatically denied. In any case, the max one is generally allowed to stay on B2 is one year.
 

By leaving the US before 11/27, there is a chance she may be able to visit the US later. Staying beyond 11/27 will make her unlawful presence of more than 6 months after extension denial and that will incur the 3 year bar.

[SusieQQQ 11,587]

Also make sure you /she understands the risks of staying beyond 11/27. I am almost certain that it is somewhere in the uscis manual that you can only get one 6 months extension (maximum of a year) stay on a B visa but I don’t have time to look for the reference now. If you apply for another extension and it gets denied - or if the first one gets denied - she will lose her current B visa if she has any days stay beyond the authorized i94 (original or, if granted, the extension). This is stated in the official info sheet for extension of stay (the employment note obviously doesn’t apply to a B):

 

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.

….

If your application for an extension of stay is approved, the approval will relate back to the date your Form I-94 expired, and your status while your application is pending will then be considered to have been lawful. 
If your application is denied, you may be required to cease employment and depart the United States immediately.
In addition, any nonimmigrant visa in your passport granted in connection with your classification becomes void. Once your visa is void, you must submit any new visa application at a U.S. consulate in your home country (not a third country, except in rare instances as determined by the U.S. Department of State).

 

https://www.uscis.gov/sites/default/files/document/guides/C1en.pdf
 

It is likely to be very difficult for her to get a new visa if her old one has been voided and she has overstayed. (Note that although there is no unlawful presence accrued while I539 is pending, it still counts as overstay - as above, the overstay gets retroactively cleared if the application is approved but remains as overstay if it’s denied.

 

FYI processing times for i539 have averaged almost 10 months this year.  Like everything else it has been a victim of big Covid backlogs at uscis. There is a good chance you may not get a decision before 11/27, unless missing the bio appointment causes a quick denial.

 

 

[SusieQQQ 11,587]

19 minutes ago, arken said:

Staying beyond 11/27 will make her unlawful presence of more than 6 months after extension denial and that will incur the 3 year bar.

She doesn’t accrue unlawful presence while waiting for i539 adjudication so a bar is not a problem (yet), but the problem of the overstay and visa being voided may effectively have the same result by making a future visa very difficult to get. 
 

 

Edited November 2, 2021 by SusieQQQ

[arken 4,197]

6 hours ago, SusieQQQ said:

She doesn’t accrue unlawful presence while waiting for i539 adjudication so a bar is not a problem (yet), but the problem of the overstay and visa being voided may effectively have the same result by making a future visa very difficult to get. 
 

 

Unlawful presence if i539 is denied while the applicant is still in the US. Uscis is not very clear though on denial of non frivolous applications unless it's assuming such are not denied.

 

5) Effect of Decision on Unlawful Presence and Tolling.

(A) Approved Applications. If the Service approves an E/S or C/S application, the alien will be granted a new period of stay authorized by the Attorney General, retroactive to the date the previously authorized stay expired, as applicable to the nonimmigrant classification under which the alien was admitted pursuant to 8 CFR 214.2. No unlawful presence accrues. This applies to aliens admitted until a specific date and aliens admitted D/S.

(B) 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.

[SusieQQQ 11,587]

They are quite clear that you don’t accrue unlawful presence while it is pending for non-frivolous applications /no violation of  status until a decision is made. I quoted them above saying it clearly from the information sheet, and the extract you quote is also pretty clear to me. There would still be overstay /out of status on the record if the request is denied, but for bar purposes unlawful presence has not accused.

 

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.

Edited November 2, 2021 by SusieQQQ

[Boiler 46,364]

I have come across somebody who said they managed 2 extensions, I assume it is very uncommon.

[SusieQQQ 11,587]

3 hours ago, Boiler said:

I have come across somebody who said they managed 2 extensions, I assume it is very uncommon.

This is what Uscis says about B (B1 specifically but my understanding is B2 is identical in law)

for some reason the part of the full manual dealing with B visitors is not currently available so this is the closest official page I could find https://www.uscis.gov/working-in-the-united-states/temporary-visitors-for-business/b-1-temporary-business-visitor  (you will find plenty of lawyer sites telling you it is a one year max on B.)

 

Period of Stay/Extension of Stay

Initial Period of Stay	Extension of Stay
1 to 6 months; 6 months is the maximum	Up to 6 months; maximum total amount of time permitted in B-1 status on any one trip is generally 1 year.

[Boiler 46,364]

B 2 Cohabitating normally gets a year, so 6 months is not the max.

[SusieQQQ 11,587]

Just now, Boiler said:

B 2 Cohabitating normally gets a year, so 6 months is not the max.

Yeah OP’s MIL is not B2 cohabiting or B working for a diplomat or any of the non-standard Bs, not a relevant observation here