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

[arken 4,197]

From USCIS:

 

 

What if I file on time for an extension, but I leave the U.S. before USCIS makes a decision on my application?

If you leave the U.S. before a decision is made on your application to extend and you plan to return to the U.S. in the future, please keep a copy of your application plus the receipt notice to show to the Immigration Inspector on your return travel to the U.S. Otherwise, you may be denied entry for overstaying on your last visit.

 

 

 

Sounds to me OP's got right info from lawyers but it does say they are no longer current, so not sure if above statement from USCIS is still enforced.

 

 

Edited May 7, 2021 by arken

[SusieQQQ 11,587]

6 hours ago, amm7s@mtmail.mtsu said:

I understand that she could still be denied entry, for any reason.

 

But my point is that the same INA 222(g) that has been cited against me, has a specific clause stating that if the alien overstays the I-94, but leaves before the decision is made, that they are not subject to 222(g) (i.e. visa revocation) regardless of approval or denial. The fact that situation is specifically stated leads me to believe that the regular phrasing of "the extension was denied", without the "leaves before the decision was made" qualifier, means that portions applies only to those who are still in the country.

 

The exact law has a specific qualifier for aliens who overstayed but left before the decision was made, and specifically states "regardless of if the extension is ultimately approved"

 

I'm no legal expert, but that qualifier matters.

 

And at least 4 immigration lawyers agree with me.

 

So can she be denied? Yes. She can be denied regardless, even if she has a valid visa and never had an overstay in the first place. But a valid visa certainly makes is much more likely to get in. A valid visa, with ties to her home country (a business she needs to tend to), certainly make it more likely to get in.

I’ve personally addressed the 222g exemption (technically there but in practice people have lost visas before despite fitting her same criteria, even one who got the extension granted) so not going to go down that route again.

 

But there are some other things here that you need to recognize. 
First, I assume you have now accepted that her overstay was, well, overstay and not lawful presence. That stays on her record.

Second, you want to present ties to the Philippines in the form of a business. Yet she managed to spend a year in the US and the business was fine, so it’s clearly not a tie - it either doesn’t need her there at all, or not very often.

Third, you said you mentioned the business to USCIS before. I guess this was also in the i539 application? But that i539 was denied. So clearly they didn’t buy the argument of the business being a tie to physically being there (as clearly it wasn’t).

Fourth, the mere fact of the i539 being denied. They didn’t accept something in there as a valid premise for an extension. That doesn’t mean it was deemed frivolous necessarily, but it means there was something in there they didn’t like. 

Fifth. The man she plans to marry is in the US, that is one big tie to the US.
 

So even with a valid visa, all the above (probably any of the above, but especially all of it taken together) are likely to mean at the very least significant scrutiny on any attempt to re-enter, especially within about a year of having left. Again, I think there is a pretty high chance of being refused entry.

 

 

Edited May 7, 2021 by SusieQQQ

[amm7s@mtmail.mtsu 1]

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Edited May 7, 2021 by amm7s@mtmail.mtsu
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