ESTA or VISA

[Letspaintcookies 2,310]

Could the passports be linked and even he showed the Czech passport CBP acknowledge the visa in the other passport?

 

OP you see we're not any wiser than you at this point and are just guessing. I'm afraid mistakes were made at his entry and your friend will have to pay the price since the burden is on the traveler to know what's going on and when to leave. Would it be possible to contact CBP to sort it out and get a better insight?

It might be wise to leave now to keep a possible ban as low as possible. 

Edited May 8, 2022 by Letspaintcookies

[SalishSea 17,928]

10 hours ago, Morrisbythesea said:

2. he doesn't remember

Don't you find this concerning?

10 hours ago, Morrisbythesea said:

He is a dual citizen, so if he leaves and reenters with his other passport which does have a visa on. Will he be allowed back in? 

That's not how that works.....

[SalishSea 17,928]

11 hours ago, Morrisbythesea said:

Can he adjust his status in the future if he overstayed his ESTA? 

 

On what basis?  He can't just adjust status because he doesn't want to leave.

[SusieQQQ 11,586]

10 hours ago, Morrisbythesea said:

He is a dual citizen, so if he leaves and reenters with his other passport which does have a visa on. Will he be allowed back in? 

Does he not remember them taking his photo and fingerprints at entry? This is precisely so people can’t game the system like this.

 

2 hours ago, Morrisbythesea said:

@ROK2USA so he entered the US with the Czech passport, and filed the i539 giving his Czech passport details. He did everything the right way except the fact that he does not remember whether he has ESTA or not. 

 

On his other passport on the other hand he does have VISA. 

 

So my question is how do we check if he came in with ESTA or a VISA on his Czech passport? 

I checked the ESTA website and there is no record of his ESTA, and on his Czech passport there is no VISA. 

That's why I am not sure what he came in with. Because if he came in on a regular visa that means he is still okay here, and he can file i-539. But if he has ESTA then from what I gathered is that the i-539 does not help?

 

Something is not adding up. If he entered on ESTA he would only have been given 90 days. If he entered on a visa…it should be in a passport. So from what you’ve said the logical conclusion is that he entered on the passport with the visa.

 

Edited May 8, 2022 by SusieQQQ

[SusieQQQ 11,586]

are either of the passports actually stamped for entry? 

[SusieQQQ 11,586]

2 hours ago, Letspaintcookies said:

Could the passports be linked and even he showed the Czech passport CBP acknowledge the visa in the other passport?

CBP online linked my different passport numbers before, iow I’d enter one number and the history showed visits on my prior one too. So I’m wondering even if they entered the Czech details online if it picked up the other passport too - not sure if the system would be smart enough that way especially if he’d only ever used one of them to enter the US with, though. (it’s possible they were linked in the system when he got his visa.)
Either the i94 was incorrect or what he actually forgot was which passport he used for entry (especially if the passports weren’t stamped on entry)

 

 

Edited May 8, 2022 by SusieQQQ

[Morrisbythesea 0]

Thank you all for all your help. So I think we just figured it out. He said he tried to apply for ESTA but something didn't work so he did not finish the application online, and that was over 2 years ago. With his other passport he entered the US because that's where he has a visa, but he was stopped at the border for some odd reason and we think they accidently gave him the i-94 on his czech passport but they did it according to the visa on his other passport. It seems they kind of messed it up at the border. So when he sent his i-539 he only put his Czech passport but now that we figured it out, it seems that he needs to update the application and add his other passport information. Is there a way to update an application and send additional documents? 

[Family 4,025]

It sounds as if your friend showed the passport that had his B1/B2 visa and based on that he was granted the 6 months on I-94. . You can check the online I-94 travel history on this CBP link ( input the passport w visa in it ) https://i94.cbp.dhs.gov/I94/#/history-search

 

But he surely mixed up his I-539 and should NOT count on it getting corrected or approved, as it was submitted w incorrect passport . I would probably

1. Do a “ supplemental filing “ to  that application, explaining “ confusion over the 90 day period of authorized stay  and confusion on which passport I entered, as I now located my I-94 ( send copy of I-94 and correct passport w visa). ..but am not confident in success .

OR 

2. Withdraw I-539 ( send explanation of confusion/ passport/ I-94) 

 

And of course, no overstay beyond the I-94 date as that will kill any future visa and / or esta visits 

 

 

 

[SusieQQQ 11,586]

2 hours ago, Morrisbythesea said:

he was stopped at the border for some odd reason

What “odd reason”? What questions did they ask him? Asking because it’s possible this will be a factor mitigating against an extension being granted on the i539.

 

Also - do you/he understand that he is unlikely to hear back about the i539 decision before his original I94 date is up? Does he have a plan about what to do in that instance?  

[Boiler 45,673]

From what has been said he is unlikely to be approved an extension but as long as he has no plans to return soon probably not important 

[Morrisbythesea 0]

@Boiler why do you think it is unlikely that he will get approved for the extension? 

He is aware that he won't get an answer before his i94 expires, but he can technically stay here while he is waiting for an answer, correct? and from what I understand he is not accruing unlawful presence as long as his extension is timely filed. right? 

 

The only thing is how do we fix the mistake on his application? 

[SusieQQQ 11,586]

1 minute ago, Morrisbythesea said:

@Boiler why do you think it is unlikely that he will get approved for the extension? 

He is aware that he won't get an answer before his i94 expires, but he can technically stay here while he is waiting for an answer, correct? and from what I understand he is not accruing unlawful presence as long as his extension is timely filed. right? 

 

The only thing is how do we fix the mistake on his application? 

More interesting question is why you think he will be approved?

 

Also need to point out something you (many people) don’t understand, which is that there is a difference between overstay and accruing unlawful presence. Yes, after his i94 ends and before he gets a decision, he is not accruing unlawful presence - this is the number that matters when you are thinking about a ban. However, he is still in overstay. That means that if his application is denied, while he will avoid a ban if he leaves immediately on getting notified of that, it does not wipe out the fact that he overstayed his allowed time. So the expected consequences of that are: his existing visa is voided, he probably won’t get an ESTA because he will have to answer “yes” to the question of whether he has ever overstayed, and he will only be able to interview for a new B visa in the country of that passport. The overstay is only wiped out, retroactively, if the application is approved.

 

Here is the relevant section from the “plain language” uscis info sheet:

 

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.
[edited out section only relevant to those on non immigrant work visas]

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…, 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)

https://www.uscis.gov/sites/default/files/document/guides/C1en.pdf

[Lil bear 4,252]

15 minutes ago, Morrisbythesea said:

@Boiler why do you think it is unlikely that he will get approved for the extension? 

He is aware that he won't get an answer before his i94 expires, but he can technically stay here while he is waiting for an answer, correct? and from what I understand he is not accruing unlawful presence as long as his extension is timely filed. right? 

 

The only thing is how do we fix the mistake on his application? 

If his extension is granted he will not incur overstay .. if it isnt granted , overstay is backdated to the day after his I94 expires 

Edited May 8, 2022 by Lil bear

[SusieQQQ 11,586]

Just now, Lil bear said:

If his extension is granted he will not incur overstay .. if it isnt granted , overstay us backdated to the day after his I94 expires 

Lol this is the five second summary of my post above 

[Lil bear 4,252]

Just now, SusieQQQ said:

Lol this is the five second summary of my post above 

I liked your post !!  We can be a good tag team. 😀