Denied I-539 - Does this have any impact on a future CR-1?

[aaron2020 11,651]

9 minutes ago, amm7s@mtmail.mtsu said:

I mean legal status for the time she was here.

Read what you quoted.

 

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. 

 

Edited May 3, 2021 by aaron2020

[amm7s@mtmail.mtsu 1]

1 minute ago, aaron2020 said:

Read what you quoted.

 

Yes.

 

She had a pending request, and departed before the 240 days. She actually departed before 180.

[aaron2020 11,651]

1 minute ago, amm7s@mtmail.mtsu said:

Yes.

 

She had a pending request, and departed before the 240 days. She actually departed before 180.

You obviously did not read what you quoted.

 

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. 

Edited May 3, 2021 by aaron2020

[Allaboutwaiting 2,503]

As per USCIS brochure, your fiancee, was not in a lawful nonimmigrant status, but did not accrue “unlawful presence” for purposes of inadmissibility under section 212(a)(9)(B) while the extension of status application was pending.

After the denial, her tourist visa became void.

 

So, she cannot return with the same visa but can apply for the CR1 and there should be no issue of inadmissibility related to the denied extension.

[Chancy 6,243]

36 minutes ago, amm7s@mtmail.mtsu said:

Yes, but she had an active extension pending. It's been my understanding, from lawyers and other sources that an extension application means you are in legal status while you await the decision. 

 

No, she was out of status when her I-94 expired, even if she had a pending extension application.  The pending application prevented her from accruing "unlawful presence" which could have made her inadmissible for future travel to the US.  This is according to the official USCIS guide here -- https://www.uscis.gov/sites/default/files/document/guides/C1en.pdf

 

Note the consequences stated if the application for extension 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".

 

[African Zealot 1,456]

1 hour ago, Jorgedig said:

It was denied.  She has an overstay.  She won't be getting another B visa.

Not correct. More than a few people have subsequently been approved after a previous overstay. In her case it was before incurring a bar to entry.

 

With that said, the chances of subsequent approval plunge with an overstay regardless of the reason for the overstay. Her current visa is automatically voided. You can google that.

 

Original Poster,  your vigorous protestations here won’t change the facts, unfortunately. Overstaying is never good.

Edited May 3, 2021 by African Zealot

[amm7s@mtmail.mtsu 1]

I'm not protesting. I am seeking clarification, and I am quoting things that I have read / heard, including directly from lawyers. Including lawyers just today who have told me that her tourist visa is not automatically revoked.

 

If seeking clarification is "vigorous protestation", then I really don't know what else to say.

 

Thank you for the information.

[powerpuff 6,748]

You should take the word of an official government source (in this case USCIS website), not what some lawyer said. And people have clarified plenty that her tourist visa is no longer valid and she has overstayed. These are facts. Period.

[SusieQQQ 11,587]

2 hours ago, amm7s@mtmail.mtsu said:

Yes, but she had an active extension pending. It's been my understanding, from lawyers and other sources that an extension application means you are in legal status while you await the decision. 

No, this understanding is wrong. The common misconception here revolves around the distinction between overstay and unlawful presence.  The bottom line is that she is in overstay (but not accruing unlawful presence which counts towards a ban) while it is pending, until and unless the application is approved. If it is approved, the approval is backdated and the overstay gets wiped out. If it is not approved, the overstay remains on record and her visa is voided.
 

Here it is explicitly right from the USCIS document on i539: https://www.uscis.gov/sites/default/files/document/guides/C1en.pdf

 

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 ... 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).

[SusieQQQ 11,587]

50 minutes ago, amm7s@mtmail.mtsu said:

I'm not protesting. I am seeking clarification, and I am quoting things that I have read / heard, including directly from lawyers. Including lawyers just today who have told me that her tourist visa is not automatically revoked.

 

If seeking clarification is "vigorous protestation", then I really don't know what else to say.

 

Thank you for the information.

Can you ask the lawyers why what they say directly contradicts a published USCIS document? That may help clarify matters. 
 

it may help them if you tell them INA 222g is the section in law they are looking for that says a visa is voided when the person overstays. This section of the law is reproduced for you below

 

g. Nonimmigrant visa void at conclusion of authorized period of stay

 

(1) In the case of an alien who has been admitted on the basis of a nonimmigrant visa and remained in the United States beyond the period of stay authorized by the Attorney General, such visa shall be void beginning after the conclusion of such period of stay.

 

(2) An alien described in paragraph (1) shall be ineligible to be readmitted to the United States as a nonimmigrant, except-

 

(A) on the basis of a visa (other than the visa described in paragraph (1)) issued in a consular office located in the country of the alien's nationality (or, if there is no office in such country, in such other consular office as the Secretary of State shall specify); or

 

(B) where extraordinary circumstances are found by the Secretary of State to exist.

 

—-

Anyway, it won’t affect a CR1. 

 

Edited May 3, 2021 by SusieQQQ

[amm7s@mtmail.mtsu 1]

16 minutes ago, SusieQQQ said:

Can you ask the lawyers why what they say directly contradicts a published USCIS document? That may help clarify matters. 
 

it may help them if you tell them INA 222g is the section in law they are looking for that says a visa is voided when the person overstays. This section of the law is reproduced for you below

 

g. Nonimmigrant visa void at conclusion of authorized period of stay

 

(1) In the case of an alien who has been admitted on the basis of a nonimmigrant visa and remained in the United States beyond the period of stay authorized by the Attorney General, such visa shall be void beginning after the conclusion of such period of stay.

 

(2) An alien described in paragraph (1) shall be ineligible to be readmitted to the United States as a nonimmigrant, except-

 

(A) on the basis of a visa (other than the visa described in paragraph (1)) issued in a consular office located in the country of the alien's nationality (or, if there is no office in such country, in such other consular office as the Secretary of State shall specify); or

 

(B) where extraordinary circumstances are found by the Secretary of State to exist.

 

—-

Anyway, it won’t affect a CR1. 

 

If you are looking at INA 222g:

 

"Alien admitted until specified date; submits a timely and non-frivolous application for extension or change of status; departs U.S. after expiration of Form I-94, but before a decision on the Form I-94 extension/change of status application. [Not Subject]"

 

"If an alien files a timely and non-frivolous application for extension or change of status, and departs the United States after the date specified on the Form I-94 but while the application is pending, he or she will not be subject to 222(g) regardless of whether the application is ultimately approved."

 

http://myattorneyusa.com/visa-overstays-and-ina-222g

 

I would imagine this is the portion of INA 222g they are referring to, since this is the most accurate account of her situation. She applied for extension in April. I-94 expired in May. She departed in November. Her decision was given in May.

Edited May 4, 2021 by amm7s@mtmail.mtsu

[SusieQQQ 11,587]

2 hours ago, amm7s@mtmail.mtsu said:

Yes.

 

She had a pending request, and departed before the 240 days. She actually departed before 180.

By the way the 240 days is the grace period for employment based visas seeking extension, it’s not relevant to tourist visas. (This may not be immediately clear on a fast reading but if you re-read the section about 240 days you will see the context). The maximum extension that can be granted in law for a tourist status is 180 days.

 

 

 

 

[aaron2020 11,651]

11 minutes ago, amm7s@mtmail.mtsu said:

If you are looking at INA 222g:

 

"Alien admitted until specified date; submits a timely and non-frivolous application for extension or change of status; departs U.S. after expiration of Form I-94, but before a decision on the Form I-94 extension/change of status application. [Not Subject]"

 

"If an alien files a timely and non-frivolous application for extension or change of status, and departs the United States after the date specified on the Form I-94 but while the application is pending, he or she will not be subject to 222(g) regardless of whether the application is ultimately approved."

 

http://myattorneyusa.com/visa-overstays-and-ina-222g

 

I would imagine this is the portion of INA 222g they are referring to, since this is the most accurate account of her situation. She applied for extension in April. I-94 expired in May. She departed in November. Her decision was given in May.

Very convenient of you to leave out the paragraph above what you quoted.  I've posted here with the relevant information highlighted.

 

Aliens Admitted Until a Specified Date with Pending Extension or Change of Status Application

If an alien admitted until a specified date files for an extension or change of status, remains in the United States after the date specified on the Form I-94 while the application is pending, and the application is subsequently approved, the alien will not be subject to 222(g). However, if an application in this case is denied, the alien will be considered subject to 222(g) regardless of the reasons for denial.
 

If an alien files a timely and non-frivolous application for extension or change of status, and departs the United States after the date specified on the Form I-94 but while the application is pending, he or she will not be subject to 222(g) regardless of whether the application is ultimately approved. If the application is found to be frivolous, section 222(g) will apply.

[amm7s@mtmail.mtsu 1]

3 minutes ago, aaron2020 said:

Very convenient of you to leave out the paragraph above what you quoted.  I've posted here with the relevant information highlighted.

 

Aliens Admitted Until a Specified Date with Pending Extension or Change of Status Application

If an alien admitted until a specified date files for an extension or change of status, remains in the United States after the date specified on the Form I-94 while the application is pending, and the application is subsequently approved, the alien will not be subject to 222(g). However, if an application in this case is denied, the alien will be considered subject to 222(g) regardless of the reasons for denial.
 

If an alien files a timely and non-frivolous application for extension or change of status, and departs the United States after the date specified on the Form I-94 but while the application is pending, he or she will not be subject to 222(g) regardless of whether the application is ultimately approved. If the application is found to be frivolous, section 222(g) will apply.

I left nothing out. You're leaving out points in your own quote:

 

If an alien files a timely and non-frivolous application for extension or change of status, and departs the United States after the date specified on the Form I-94 but while the application is pending, he or she will not be subject to 222(g) regardless of whether the application is ultimately approved. If the application is found to be frivolous, section 222(g) will apply.

 

She left while it was pending. The decision came 6 months after she left the country. The wording above clearly states that she is not subject to 222(g) regardless of the decision, because she left while it was still pending.

Edited May 4, 2021 by amm7s@mtmail.mtsu

[aaron2020 11,651]

Why bother coming here for help when all you are going to do is argue?