Extension of Stay for Covid (versus pursuing AOS)

[martha783 12]

My husband entered on a B1/B2 visa along with my children and me (UScits) in March on a repatriation flight seeking medical care for our newborn. We reside in Peru, which is still closed and seems it may remain so for several more months so we are making a decision whether to file for an extension of stay or just file for AOS (potentially having to abandon residency later depending on where we want to continue residency).

 

I searched on this forum but found there is very little information or experience with extensions and most of it is negative, as if they are always denied.

Has anyone successfully obtained an extension of stay? Any advice on which path to take?  We're concerned if an extension is denied, my husband would be unable to return to his home country but forced to leave the U.S. so that worst case scenario is what we want to avoid.

 

Any advice or thoughts welcomed! 

I noticed USCIS updated their website with this information so I'm sharing here for context:

Extension of Stay/Change of Status Filing Delays Caused by Extraordinary Circumstances Related to COVID-19

Generally, nonimmigrants must depart the United States before their authorized period of admission expires. However, we recognize that nonimmigrants may unexpectedly remain in the United States beyond their authorized period of stay should apply for an extension or change of status in advance. Should this occur, the following options are available to nonimmigrants:

Apply for an Extension. Most nonimmigrants can mitigate the immigration consequences of COVID-19 by timely filing an application for extension of stay (EOS) or change in status (COS). USCIS continues to accept and process applications and petitions, and many of our forms are available for online filing. 

If You File in a Timely Manner. Nonimmigrants generally do not accrue unlawful presence while the timely-filed, non-frivolous EOS/COS application is pending. Where applicable, employment authorization with the same employer, subject to the same terms and conditions of the prior approval, is automatically extended for up to 240 days after I-94 expiration when an extension of stay request is filed on time.

Flexibility for Late Applications. USCIS may excuse a nonimmigrant’s failure to timely file an extension/change of status request if the delay was due to extraordinary circumstances. Under current regulations and as noted on our Special Situations page, if a petitioner or applicant files an extension of stay or change of status request (on Forms I-129 or I-539) after the authorized period of admission expires, USCIS may excuse the failure to timely file if it was due to extraordinary circumstances beyond their control, such as those that may be caused by COVID-19. The length of delay must be commensurate with the circumstances. The petitioner or applicant must submit credible evidence to support their request, which USCIS will evaluate in its discretion on a case-by-case basis. These special situations have been used at various times in the past, including for natural disasters and similar crises.

Flexibility for Visa Waiver Entrants. Visa Waiver Program (VWP) entrants are generally not eligible to extend their stay or change status. However, under current regulations, if an emergency (such as COVID-19) prevents the departure of a VWP entrant, USCIS in its discretion may grant up to 30 days to allow for satisfactory departure. Please see 8 CFR 217.3(a). For those VWP entrants already granted satisfactory departure and unable to depart within this 30-day period because of COVID-19 related issues, USCIS has the authority to temporarily provide additional 30-day periods of satisfactory departure. To request satisfactory departure from USCIS, a VWP entrant should call the USCIS Contact Center.

For More Information. Please see 8 CFR 214.1(c)(4) and 8 CFR 248.1(c) for additional information on late requests to extend or change status. In addition, please see our Form I-129 and Form I-539 pages for specific filing and eligibility requirements for extensions and changes of status.

[Just Paul 4,595]

Extensions are rarely granted.  Since they take longer then the time it takes to process and the are mostly denied, it creates an issue for visitor as their visa is automatically canceled.

 

If he can't leave before the I-94 expires then AOSing is the only true solution.

[SusieQQQ 11,586]

It’s a strange question to ask imo . He either wants to remain a visitor, in which case file an extension, or he wants to get a green card and live permanently in the US, in which case file AOS. They are not at all similar or substitutes for each other. 
 

 

3 minutes ago, Paul & Mary said:

Extensions are rarely granted.  Since they take longer then the time it takes to process and the are mostly denied, it creates an issue for visitor as their visa is automatically canceled.

 

If he can't leave before the I-94 expires then AOSing is the only true solution.

I’m going to disagree here as the mere fact that uscis specifically has a page about extensions during covid, implies they are very understanding of the current circumstances. And we’ve certainly seen a number of reports of extensions granted for rather flimsy reasons. 
 

Edited August 3, 2020 by SusieQQQ

[martha783 12]

Wow, a visa is canceled if it is denied? I thought I read they just had to leave right away, but they were allowed to stay while it is pending (and provide proof they had an I-539 pending and left immediately when it was denied). Theoretically, if it really is going to take 6+ months be processed, we'd hope to have returned to Peru by then so the main concern is not risking him having a visa (we spend about 2 months a year in the U.S. now). So if it is canceled as an overstay as soon as it is denied, that changes the options.

[Just Paul 4,595]

1 minute ago, martha783 said:

Wow, a visa is canceled if it is denied?

If he overstays. The issue is that you try to extend you  usually don't know it has been denied until there is an overstay.

[martha783 12]

2020 has been a strange year raising strange questions!

 

Pre-pandemic, our home was in Peru had we only were interested in him having a B1/B2 visa and being able to come a couple times a year for a few weeks. However, right now there is a possibility we will spend at least 60% of our time in the U.S. over the next few years (meaning we could potentially fulfill requirements for citizenship pursuits given we've been married 7 years already). We just don't know what the future holds for Peru, and for our family right now. Of course, AOS is not usually the path to moving to the U.S., but we find ourselves in circumstances where changing our intended residency from the time he entered in March is quite legitimate.

 

Some of that remains to be seen but the immediate issue is he HAS to do something now and not risk overstaying. We'll know a lot more about our plans by the time either route would be done processing.

[Just Paul 4,595]

If he can't leave then doing an AOS now is the best option.  It could take 6 months to a year to get done.  He can't leave until getting Advanced Parole.   Fees are going way up in October.  He would get a 10 year green card if he completed the process.  Eligible for citizenship 3 years after getting his green card.

[Lucky2Lucky 2,526]

3 minutes ago, martha783 said:

2020 has been a strange year raising strange questions!

 

Pre-pandemic, our home was in Peru had we only were interested in him having a B1/B2 visa and being able to come a couple times a year for a few weeks. However, right now there is a possibility we will spend at least 60% of our time in the U.S. over the next few years (meaning we could potentially fulfill requirements for citizenship pursuits given we've been married 7 years already). We just don't know what the future holds for Peru, and for our family right now. Of course, AOS is not usually the path to moving to the U.S., but we find ourselves in circumstances where changing our intended residency from the time he entered in March is quite legitimate.

 

Some of that remains to be seen but the immediate issue is he HAS to do something now and not risk overstaying. We'll know a lot more about our plans by the time either route would be done processing.

If your plan is to live in the USA then apply for AOS ASAP. If it's not then it is pointless to try to obtain residency other than a way to "stay" for now. It is your choice if you want to go that route or wait for an extension and hope for an approval. It does sound like you are in a difficult situation. Has Peru not had repatriation flights for their citizens? 

[martha783 12]

This is why I've been so confused about what happens if the extension is denied and Peru's borders aren't open yet. Am I misunderstanding what I am reading here then if I think it means he would get denied and could leave right away without it being an overstay? What about if he'd left before the response but after the I94 date?

0. 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.

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

 

[martha783 12]

From what I see, advanced parole is taking several months too. So that raises another question (in this strange unpredictable world that is our lives)... if we apply for AOS now, and 5 months from now AP is not approved and we leave for Peru, he will have abandoned his I485 process. Will his B1/B2 be valid? Are there negative consequences for starting AOS if we change our minds in the process and don't finish it?

[martha783 12]

8 minutes ago, Paul & Mary said:

If he can't leave then doing an AOS now is the best option.  It could take 6 months to a year to get done.  He can't leave until getting Advanced Parole.   Fees are going way up in October.  He would get a 10 year green card if he completed the process.  Eligible for citizenship 3 years after getting his green card.

Peru is still 100% closed. They did a few repatriation flights, but that was when we were repatriating HERE for our daughter's medical care. There are no longer any flights to return to Peru and current predictions are there won't be until January 2021ish. We don't even have a guarantee it will be open by the 6 month extension mark, though it seems likely. The situation in Peru is quite severe in every sense, and we're not sure if it will be tenable soon to return with our young children (thus possibly reconsidering our residency there and not knowing if we want to continue for my husband to have 0 rights to entry to the U.S. if its the best place for our children for a longer time).

[Boiler 45,467]

Seems the main issue is for you to decide where you want to be, the spending time here or there will not work unless you both have Citzenships of each other countries, well I presume that would apply for Peru, certainly for the US. Once you have decided that then the rest follows.

 

Has he contacted the Peruvian Embassy? I find it strange that they are refusing admittance to Citizens.

[martha783 12]

We do all have Peruvian citizenship, so the only issue at stake is my husband's residence since he only has Peruvian citizenship.

 

It's hard to explain to someone unfamiliar with Peru's current situation because it is unlike any other nation in the world that I know of in how it has managed the pandemic, but the borders (air and land) have been closed since March 15th, and they have now told all their citizens abroad they must take up residency elsewhere until some unknown future date when they may be readmitted. Yes, lots of strange going on.

[SusieQQQ 11,586]

Honesty, I really don’t think the extension will be denied under current circumstances. USCIS are bending over backwards to be flexible. Example the satisfactory departure extension for VWP is usually only ever granted once for a stay, we have seen reports of up to three times. I really don’t think your decision should be guided by fear of this being denied.

If he applies for AOS and leaves before he gets AP and abandons it, he’s almost certain to get his B visa cancelled anyway. So trying to “game the system” doing this because you think he will lose his B, just ends up being a much more expensive path to the same outcome.
Seems to me the way to go is decide what you actually want to do long term and file the appropriate forms before his i94 expires.  From what you’ve said, that’s probably AOS, given he should be able to meet residency requirements.

Edited August 3, 2020 by SusieQQQ

[mushroomspore 3,044]

1 hour ago, martha783 said:

From what I see, advanced parole is taking several months too. So that raises another question (in this strange unpredictable world that is our lives)... if we apply for AOS now, and 5 months from now AP is not approved and we leave for Peru, he will have abandoned his I485 process. Will his B1/B2 be valid? Are there negative consequences for starting AOS if we change our minds in the process and don't finish it?

You are correct about him abandoning I-485 IF he leaves BEFORE AP is approved. I don't have experience with B1/B2 but he can't leave and enter with it after filing AoS. Once you file AoS, the applicant is granted a special status by the government. I believe it's called "authorized stay" or something similar. This is why we need the AP. We have to be "paroled" back into the country if we leave during AoS. Once you file AoS, you declare immigrant intent and you can't enter on a non-immigrant status when you've declared immigrant intent. 

 

If you start AoS and then abandon it, I don't think he will be able to get another B1/B2. Once again it goes back to declaring immigrant intent by filing AoS. The government will see he's declared it once before and didn't finish it. Uncertainty about a person's intentions is why more intense scrutiny and denials happen. Basically, whichever you decide to go about this, you'll have to really commit to it because there's no erasing of records or restarting with a clean slate. I would suggest considering AoS. Travel to Peru is simply not happening for the rest of the year. By Jan, you'll be closer to getting the EAD/AP. He can start working and in about a year and some change, he'll be a permanent resident. Some rules still apply to him about not leaving the US for too long but if Peru is being this strict about its borders, it may take them a while to open back up anyways. We also do not know how Peru will treat people coming from America, even after COVID settles down. The world is very wary of us and rightfully so. Overall, it'd be more secure to get him permanent resident status. Visas are already tricky and they're only going to get trickier.

Edited August 3, 2020 by mushroomspore