ESTA or VISA

[Dashinka 23,330]

18 minutes ago, SusieQQQ said:

More interesting question is why you think he will be approved?

 

Also need to point out something you (many people) don’t understand, which is that there is a difference between overstay and accruing unlawful presence. Yes, after his i94 ends and before he gets a decision, he is not accruing unlawful presence - this is the number that matters when you are thinking about a ban. However, he is still in overstay. That means that if his application is denied, while he will avoid a ban if he leaves immediately on getting notified of that, it does not wipe out the fact that he overstayed his allowed time. So the expected consequences of that are: his existing visa is voided, he probably won’t get an ESTA because he will have to answer “yes” to the question of whether he has ever overstayed, and he will only be able to interview for a new B visa in the country of that passport. The overstay is only wiped out, retroactively, if the application is approved.

 

Here is the relevant section from the “plain language” uscis info sheet:

 

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.
[edited out section only relevant to those on non immigrant work visas]

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…, 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

I have never really understood why someone would file the I589 for a B2 pay the fee and risk a potential overstay, loss of the B2 and unlikely to get another one anytime soon.

[SusieQQQ 11,584]

38 minutes ago, Dashinka said:

I have never really understood why someone would file the I589 for a B2 pay the fee and risk a potential overstay, loss of the B2 and unlikely to get another one anytime soon.

I honestly think a lot of people just don’t really understand the risks. OP is not, by a long shot, the only person I’ve seen who interprets “not accruing unlawful presence” as “no negative consequences”.

[Redro 4,601]

7 hours ago, Letspaintcookies said:

Could the passports be linked and even he showed the Czech passport CBP acknowledge the visa in the other passport?

 

OP you see we're not any wiser than you at this point and are just guessing. I'm afraid mistakes were made at his entry and your friend will have to pay the price since the burden is on the traveler to know what's going on and when to leave. Would it be possible to contact CBP to sort it out and get a better insight?

It might be wise to leave now to keep a possible ban as low as possible. 

 

4 hours ago, SusieQQQ said:

CBP online linked my different passport numbers before, iow I’d enter one number and the history showed visits on my prior one too. So I’m wondering even if they entered the Czech details online if it picked up the other passport too - not sure if the system would be smart enough that way especially if he’d only ever used one of them to enter the US with, though. (it’s possible they were linked in the system when he got his visa.)
Either the i94 was incorrect or what he actually forgot was which passport he used for entry (especially if the passports weren’t stamped on entry)

 

 

I traveled with a B1/B2 in my old passport and a new passport. 

I always had to show my visa in the old passport. And once I needed to scan it via a self service machine (so I'm fairly positive it was scanned every single entry).

They always stamped my new passport. Things might have changed though because the last time I was in the US was early 2020. 

 

Some officers (in all countries) pay no attention to what exists on your passport page and will stamp over an existing stamp from another country. 

Always a fun game of "try to find the correct page/passport stamp".

 

@Morrisbythesea two suggestions. 

1.) Check the passports one more time. Make sure there really aren't any passport stamps from the US. (you mentioned your friend has been traveling for 3 years so there is a chance he has quite a few overlapping entry/exit stamps).

2.) Check I94 record with his mysterious visa holding passport. You keep saying he entered with the Czech Passport but you should confirm it by checking the record of the other passport. 

 

Finally: Your friend should leave before his stay expires. He sounds very confused about it all and B2 extensions aren't guaranteed. 

If he would like to return to the US sometime in the future. He shouldn't flirt with the possibility of overstay.  

[SusieQQQ 11,584]

Heard from a number of foreign passport holders /visitors that their passports have not been stamped on entry in the past couple of years. They stopped stamping mine a few years ago and I wasn’t sure if that was because I had a green card, but apparently it’s going that way for visitors too. Possibly differs by POE too? Certainly from my last observation at the global entry kiosk at SFO, a couple of weeks ago, none of the foreign passport holders using that get a stamp. The guy just checks for a check mark and lets them in. (Not sure if those that got Xs and needed to see an officer got a stamp, but the others definitely didn’t.)

Edited May 9, 2022 by SusieQQQ