I-539 (Extension of I-94) for B2 visa holder due to COVID pandemic

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Sep 8th 2020, 7:37 am

skumar221

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I-539 (Extension of I-94) for B2 visa holder due to COVID pandemic

Hi,

My mother has been visiting me in US since Nov-2019 on B2 visa. She was supposed to fly back to India in March but got stuck due to COVID-19. We filed I-1539, extension of I-94 more than 45 days before the expiry date of May 2019 of the current I-94. USCIS sent the receipt notice and scheduled biometrics appointment but soon their offices also got shutdown. The offices have now reopened but they have not rescheduled biometrics appointment yet. I understand her current stay is legal due to pending petition. My questions are

- If she flies back to India now and USCIS calls for biometrics’ appointment later, what would happen to her I-539 petition? If petition is rejected due to not showing up for biometrics appointment, would her stay between May 2019 and departure be retroactively declared illegal?

- Even if extension is granted, it would be till Nov 2020. Can her I-94 be further extended beyond maximum 1 year stay on B2 visa due to ongoing COVID pandemic?

- Is there any other option or visa category that she can apply for to extend her stay beyond the maximum 1-year duration?

Sep 8th 2020, 9:51 am

Noorah101

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Re: I-539 (Extension of I-94) for B2 visa holder due to COVID pandemic

I can only answer #3 which is none that I know of. If you are a USC and she wants to live permanently in the USA, you can file for her adjustment of status to permanent resident, but she can't go back home for a visit until she has her green card in hand.

Rene

Sep 9th 2020, 12:23 am

civilservant

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Re: I-539 (Extension of I-94) for B2 visa holder due to COVID pandemic

If she fails to complete the application OR it is denied, the presence will be considered illegal for purpose of a ban and revocation of visa. If, as a result, she accrues more than 180 days unlawful presence, she will have a 3 year ban from returning to the US.

She needs to go home. She needs to stop trying to live in the US without an appropriate visa to do so, and using COVID as an excuse. Exactly what is stopping her from getting on a flight today? Even if it stops in a third country, you can make it happen.

Sep 9th 2020, 12:57 am

scrubbedexpat099

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Re: I-539 (Extension of I-94) for B2 visa holder due to COVID pandemic

Planes are flying, they seem to be generous with extensions.

Sep 9th 2020, 7:01 am

newacct

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Re: I-539 (Extension of I-94) for B2 visa holder due to COVID pandemic

Quote:

Originally Posted by civilservant

This is incorrect. She does not accrue "unlawful presence" while a timely-filed, non-frivolous EOS or COS application is pending, even if it is ultimately denied or abandoned. If it is denied and she is still in the US on the date of the denial, "unlawful presence" will only accrue starting from the date of the denial. If she leaves the US before a decision is made on her application, she did not accrue any "unlawful presence", and her visa is not voided.

See USCIS Adjudicator's Field Manual chapter 40.9.2(b)(3)(B):

Quote:

However, according to USCIS policy, an alien does not accrue unlawful presence (the accrual of unlawful presence is tolled), and is considered in a period of stay authorized for purposes of sections 212(a)(9)(B)(i)(I), (B)(i)(II), and (C)(i)(I) of the Act during the entire period a properly filed EOS or COS application is pending, if the EOS or COS application meets the following requirements:
· the non-frivolous request for EOS or COS was filed timely. To be considered timely, the application must have been filed with USCIS, i.e. be physically received (unless specified otherwise, such as mailing or posting date) before the previously authorized stay expired. [...]
· the alien did not work without authorization before the application for EOS or COS was filed or while the application is pending; and
· the alien has not failed to maintain his or her status prior to the filing of the request for EOS or COS.

Chapter 40.9.2(b)(3)(C):

Quote:

Departure from the United States while a request for EOS or COS is pending, does not subject an alien to the 3-year, 10-year, or permanent bar, if he or she departs after the expiration of Form I-94 , Arrival/Departure Record unless the application was frivolous, untimely, or the individual had worked without authorization.

Chapter 40.9.2(b)(3)(D)(iv):

Quote:

If a timely filed, non-frivolous request for EOS or COS is denied for cause, unlawful presence begins to accrue the day after the request is denied.

The State Department's Foreign Affairs Manual says something similar. 9 FAM 302.11-3(B)(1)(b)(4):

Quote:

For aliens who have applied for extension of stay or change of nonimmigrant classification and who have remained in the United States after expiration of the From I-94 while awaiting DHS's decision, the entire period of the pendency of the application, provided that:

(a) the alien does not work unlawfully while the application is pending and did not work unlawfully prior to filing the application; and

(b) the alien did not otherwise fail to maintain his or her status prior to the filing of the application (unless the application is approved at the discretion of USCIS and the failure to maintain status is solely a result of the expiration of the Form I-94), and further provided either:

(i) that the application was subsequently approved; or

(ii) if the application was denied or the alien departed while the application was still pending, that the application was timely filed and nonfrivolous.

For voiding of visas under INA 222(g), see 9 FAM 302.1-9(B)(1)(c)(4)(b):

Quote:

In addition, if an alien departs after the date on the Form I-94 passes, but before his or her application for extension or change of status has been decided by USCIS, they must be subject to a blanket exemption from INA 222(g), if the application was filed in a "timely manner" and is "nonfrivolous" in nature.

Sep 9th 2020, 7:25 am

steph0scope

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Re: I-539 (Extension of I-94) for B2 visa holder due to COVID pandemic

The Indian embassy has been arranging repatriation flights for people who don’t have legal status to stay here indefinitely (so that would be visitors, for example) since May.