Extension of B Visa during pandemic and ESTA application

[ghaus01 0]

Hello!

I would love to get your opinions on the following situation:

I am from Poland and an US Citizen (though naturalization). My sister came to visit me on B-2 visa right at the beginning of the pandemic in March 2020. Her return ticket was for 3 weeks after. What followed was a lockdown and she was unable to return as all the flights were cancelled. 

Her I-94 was valid until 08/28/2020 and we filed I-539 for (Application to Extend/Change Non-immigrant Status) on 07/14/2020, so 45 days before I-94 expiration (Polish borders were still not open). The new validity date requested was 02/27/2021. The application was pending when she departed back to Poland on 02/28/2021.

About a month after her return to Poland she received a notification for an appointment at USCIS but because she was no longer in US, she was not able to attend and her extension request was denied due to no show.

 

Since then she has visited me twice on her B-2 visa with no issues.

 

Fast forward to now, her B-2 visa has expired. US no longer requires B-2 visa for travel to US for tourism for Poland. She has to fill out ESTA application and she is struggling how to answer this question:

"Have you evert stayed in the United States longer than the admission period granted to you by the US government?"

 

I found this on USCIS page in "How to extend my nonimmigrant status in United States" guide:

Quote

Your lawful nonimmigrant status end, you are you of status, when you Form I-94 expires, even if you have timely applied to extend your nonimmigrant status. (...) Even though you are not actually in 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 and it was filed prior to the expiration of your Form I-94.

 

Could you please advise (maybe someone was in similar situation) how she should answer this question on ESTA application?

 

[Boiler 45,895]

My vote is Yes

[ghaus01 0]

38 minutes ago, Boiler said:

My vote is Yes

Thanks! The reason I struggle with this is it would mean automatic denial. And the point of the question is to determine if unlawful presence took place and it did not.

[Boiler 45,895]

3 minutes ago, ghaus01 said:

Thanks! The reason I struggle with this is it would mean automatic denial. And the point of the question is to determine if unlawful presence took place and it did not.

The point of any question is always up for debate.

[OldUser 7,230]

2 hours ago, ghaus01 said:

Thanks! The reason I struggle with this is it would mean automatic denial. And the point of the question is to determine if unlawful presence took place and it did not.

You cannot guess for USCIS / DHS why they're asking this or that question. 

 

The question doesn't ask about unlawful status or anything like this. 

 

I vote for answering "yes" too. Otherwise this may bite her as misrepresentation in the future.