B2 visa extension case abandon or not?

[DIVx 0]

My mother's I-94 expired at the end of Apr. Since borders were closed at that time due to covid-19 we filed I-539 form and asked for 5 months extension till the the end of Sep. The case had been processing since then by USCIS and my mother was about to leave country this month as planned but all the sudden biometric appointment scheduled for the beginning of Oct arrived last week. What is the best solution in this case from the perspective of future re-entries to the USA:  

1) Leave the country as planned and get the case abandoned?  

2) Change the flight date and stay for biometric and leave country after that?
What are consequences of getting case abandoned - If we do this will 5 months overstay be considered as unlawful presence?  On the other hand - If we wait for biometric will it be considered the initial request to leave country at the end of Sep is broken which can cause extension denial at all?

 

 

[SusieQQQ 11,587]

Let her leave as planned and write to uscis withdrawing the application when she does (at the same time notify the address on the bio notice that she has left the country and won’t keep the appointment). Keep the receipt notice of the i539 and proof of when she left the US in case she needs to show that at future visa interviews/to CBP on future entries. There is no point staying to do the bio if she intends to leave right after that anyway, just doing the bio doesn’t change anything. But don’t just not show up to the bio without notifying them.

Edited September 21, 2020 by SusieQQQ

[DIVx 0]

Here is the story development-  my mother left country in Sep as she planned and we notified USCIS accordingly that she could not submit biometrics in Oct for this reason asking to reschedule biometrics in her home country if possible. Last week we finally received USCIS decision - application denied (see below). 

What are our next steps? Does it mean my mother accrued unlawful presence and will be banned from admission to the U.S. in future? Should we file that motion they referred to or do any other actions?

 

*********

After careful review and consideration of the entire record, your Form I-539 is denied for the reason(s) discussed below.

You were admitted to the United States as a/an B-2 nonimmigrant on ********, 2019, and were granted an authorized period of stay until *******, 2020.

Under Title 8, Code of Federal Regulations (CFR), section 103.2(b)(13)(ii), if USCIS requires an individual to submit biometrics, attend an interview, or other required in-person process, and that individual does not comply, the application or petition shall be considered abandoned and denied, unless USCIS has received a change of address or rescheduling request by the appointment time that the agency concludes warrants excusing the failure to appear.

Title 8 Code of Federal Regulations, Section 214.1(c)(5) states:

Decision in Form I-129 or I-539 extension proceedings. Where an applicant or petitioner demonstrates eligibility for a requested extension, it may be granted at the discretion of the Service. There is no appeal from the denial of an application for extension of stay filed on Form I-129 or I-539.

A review of official records shows that you departed the United States on *********, 2020. Because you have departed the United States, you will be unable to satisfy the biometric requirement of the Form I-539. Regulations require all applicants on a Form I-539 attend a biometric appointment at their nearest ASC.

USCIS is denying your application as a matter of discretion. Should you seek to re-enter the United States as a B nonimmigrant, you will be required to establish your admissibility again and be granted admission as a B-2 nonimmigrant by U.S. Customs and Border Protection.

Therefore, your application is denied. This decision is without prejudice to consideration of subsequent applications to extend/change nonimmigrant status filed with USCIS.

This decision may not be appealed. However, if you disagree with this decision, or if you have additional evidence that shows this decision is incorrect, you may submit a motion to reopen or a motion to reconsider by completing a Form I-290B, Notice of Appeal or Motion. A motion to reopen must state the new facts to be considered and must be supported by affidavits or other new documentary evidence. A motion to reconsider must show that the decision was legally incorrect according to statute, regulation, and/or precedent decision.

The motion must be filed within 33 days from the date of this notice. 

**************

 

 

[SusieQQQ 11,587]

It seems to me that it was denied on the technicality of her having left before bio. (Question, did you request to withdraw the application as suggested or just say she couldn’t be at the bio?) Regardless, assuming she was less than 180 days overstay she won’t have a ban. She has kept copies of all the relevant documents right - showing her application for extension and the date she left?  
(I’m not sure why you requested to schedule biometrics in her home country? The application cannot be completed outside the US?)