DS-160 form question and extension of stay (I-539)

[mickmick 0]

Hello,

I hope you're doing well.

I am in an odd situation and need some help. My father was here in USA last summer on B2. Because of COVID-19 situation, we decided to file for extension. We did his fingerprinting as well. But probably because of lots of backlog at USCIS, it took too long to process his case. So he left the USA while his case was still being processed. After few months, I got denial notice. Now, his visa has also expired (10 years) so I am planning to apply for new visa. I have a question regarding one DS-160 question.

Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa?

Should I say NO, since he left the country BEFORE the application was denied?

Please help.

[aaron2020 11,651]

You need to say YES.  Your father did overstay the amount of time granted by an immigration official by staying past his I-94 expiration.  Filing an I-539 does not negate the fact that your father overstayed.

At your father's visa interview, he can present evidence that he intended to go home and not overstay, but COVID prevented him from going home - a circumstance beyond his control.

Saying NO would be a lie that could lead to a denial.

From USCIS. https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-3#:~:text=A pending application to extend,immigration status on an alien.

A pending application to extend or change status (Form I-129 or Form I-539), a pending adjustment application, or a pending petition does not confer lawful immigration status on an alien. In addition, a pending application or petition does not automatically afford protection against removal if the alien’s status expires after submission of the application. The alien may have no actual lawful status in the United States and may be subject to removal proceedings unless and until the extension of stay (EOS) application, change of status (COS) application, adjustment application, or petition is approved. 

 

[mickmick 0]

Hi Aaron,

 

Thank you for your quick response.

 

I just talked to an attorney and attorney said this,
 

Quote

Well if the petition was denied while the person was here then you would have “overstayed” but you left before the petition was denied

 

I am little confused now. Any suggestions.

[aaron2020 11,651]

Up to you whether to mark YES or NO.  

[SusieQQQ 11,586]

6 hours ago, mickmick said:

Hi Aaron,

 

Thank you for your quick response.

 

I just talked to an attorney and attorney said this,
 

 

I am little confused now. Any suggestions.

The lawyer you talked to has confused overstaying with unlawful presence. I hope you didn’t pay him for making that error. Your father did not accumulate any unlawful presence before he was denied. He did however overstay. USCIS makes it abundantly clear in their guide to i539 that staying past the date on the i94 puts you out of status (in other words, in overstay):

 

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

 

Again, this is an official document from USCIS.  If you read further in that link you will see that any subsequent approval of the i539 gets backdated to the prior i94 and retroactively wipes put the overstay. However, a denial does not do that and the overstay remains on record.  

The only correct answer to “did you overstay” is yes. Your father can and should bring all the evidence around the reasons for the overstay, the receipt notice for the i539, and his attempts to get home and actual date he did leave, to his visa interview.

 

 

Edited April 22, 2021 by SusieQQQ

[mickmick 0]

Thank you Susie and Aaron.

 

I have one follow-up question, for my mother, the case is pending with status, "Case Was Updated To Show Fingerprints Were Taken". My father is primary applicant (I-539) whereas my mother is secondary (I-539A). Since her case is pending (could be approved or denied later days), how should I answer the same question on DS-160?

 

Thanks.

[mickmick 0]

Thank you Susie and Aaron.

 

I have one follow-up question, for my mother, the case is pending with status, "Case Was Updated To Show Fingerprints Were Taken". My father is primary applicant (I-539) whereas my mother is secondary (I-539A). Since her case is pending (could be approved or denied later days), how should I answer the same question on DS-160?

 

Thanks.

[aaron2020 11,651]

The answer is still Yes.  They overstayed past their I-94 expiration.  Filing the I-539 does not change that.