Re-entry to US after I-539 denial on a previous visit

[Singh53 0]

My parents visiting US on B2 have applied for B2 extension (due to covid etc.) 35 day before the I-94 expires. Presume that the I-539 is denied and they will be labelled as "Overstayed". My two questions:

1). If they will have left the US before their I-539 is denied, will there be any restriction/issues on their next visit to the US?

2). Secondly, if the denial decision is made while they still are in the US. They will leave US immediately after this decision and before 180 days past their original I-94, will they attract any restrictions on their revisit t the US?

[Unlockable 7,314]

1) If the I-539 is denied and it is past their I-94 leave date, they will have overstayed. That will mean their visitor visas is a high risk of being revoked.

2) Same as above. Even if they leave immediately, they would still have overstayed which could lead to revocation of their visas.

 

The extension gives them authorized stay during the decision process, but it doesn't save them from overstaying. If denied, the overstay would count from the time their I-94 expired. Not from the time the extension is denied.

 

 

This is why applying for extensions of visitor visas are so risky. However, we have seen that immigration has been more lenient since Covid, so hopefully they would get the extension.

[Singh53 0]

Thanks Unlockable. I also have the fear that there are "risks" of Visa revocation.

 

But can someone share information based on personal or others experiences of similar situation? Has there really been Visa revocations due to overstay of less than 180 days vis-a-vis I-539 denial?

[SusieQQQ 11,586]

1 minute ago, Singh53 said:

Thanks Unlockable. I also have the fear that there are "risks" of Visa revocation.

 

But can someone share information based on personal or others experiences of similar situation? Has there really been Visa revocations due to overstay of less than 180 days vis-a-vis I-539 denial?

The “risks” are stated in law. But yes if you go back and search the forums you’ll see peopel who had their visas revoked for overstay under these circumstances. 
 

From the USCIS document on extensions, the section on adjudication after the i94 has expired: https://www.uscis.gov/sites/default/files/document/guides/C1en.pdf :

If your application is denied, you may be required to cease employment and 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).

 

[Boiler 45,486]

Not sure high risk is the correct term, it would be n inevitable consequence.

[Singh53 0]

Thanks Unlockable,  Boiler and SusieQQQ for the inputs. 
 But how to save the situation?

I have submitted online my N400 early February, and biometrics are exempted.  Once I become USC, and they still are in the US, Can I apply for their AOS even if their I539 is rejected?
Any idea when can I expect citizenship so that I may apply for their AOS? I am in San Jose. 

[SusieQQQ 11,586]

Likely to be months yet before you become a citizen. Anecdotally SJ has been taking over a year: the official processing time listed on the uscis website for them for N400 is 10.5-17 months.
 

VJ has terms of service and that will prevent anyone giving you guidance that it is ok to have your parents stay out of status for months until they can file for adjustment of status.  It’s not clear from your post when they filed i539 and when actual and request i94s did/might end.
Regardless they only accrue a ban for unlawful presence of >180 days if they leave the US, and they do not accrue unlawful presence while waiting for i539 adjudication even if they end up being out of status. So there would not be a ban if they left after i539 decision regardless what the outcome is. The safer method all round immigration wise is for them to return home and await immigrant visa processing.

[Singh53 0]

They have applied I539 on 5th August and their I94 expires on 14 September. Acknowledgement to my N400 in February indicated 11 months waiting although the current status shows  9 months. Wondering this 9 months is from the beginning of further on?

What would you advise me in such situations? I mean should my parents Waite for the outcome of their extension request, hoping that I might become USC by then!

[SalishSea 17,827]

On 8/23/2021 at 4:32 PM, Singh53 said:

They have applied I539 on 5th August and their I94 expires on 14 September. Acknowledgement to my N400 in February indicated 11 months waiting although the current status shows  9 months. Wondering this 9 months is from the beginning of further on?

What would you advise me in such situations? I mean should my parents Waite for the outcome of their extension request, hoping that I might become USC by then!

They should go home, and be petitioned and join the queue like everyone else.

 

Why would you risk a ban?

[Singh53 0]

That sounds great! Thanks everyone for making things clear.