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In March 2020, my wife traveled on her valid B2 visa to USA to visit me while her green card application was pending. In April 2020, we received an update from NVC that my wife's documents have been accepted and the case is now with Mumbai embassy and they will call to schedule an interview. However, due to COVID the Mumbai embassy stopped scheduling any visa interviews. Then we filed for I-539 to extend her stay while we wait for Mumbai embassy to open up.

My question is - if she leaves the US before her I-539 is approved/denied then will she be able to re-enter USA on her B-2 visa or would that visa be voided? Note - her I-94 expires on Sept 3rd 2020.

Also, does denial of I-539 or overstay past her I-94 date be considered during her interview at the Mumbai Embassy?

Facts -

-She came to USA on March 4th 2020 -I-94 expires on Sept 3rd -I-539 applied on Aug 7th -USCIS confirmed that they will make a decision by mid-Nov 2020 or mid-Jan 2021

Thanks in advance for all your help!

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There are several questions here.

Will her visa be voided?

The visa used to enter the US is generally automatically voided under INA 222(g) if one stays past the date on one's I-94. See 9 FAM 302.1-9. However, her visa is not voided during the period a timely-filed, non-frivolous EOS/COS application is pending, so if the EOS/COS is approved, or she leaves the US while it is pending (even if it is past the date on her I-94), her visa is not voided.

See 9 FAM 302.1-9(B)(1)(c)(1):

(1) In General: For the purposes of INA 222(g), an alien who entered the United States on an NIV will be considered to have overstayed his or her period of authorized stay if:

(a) The alien remained in the United States beyond the specific date stated on the Form I-94, Arrival-Departure Record; or

(b) USCIS, an IJ, or the BIA has formally found that the alien has violated his or her status.

and 9 FAM 302.1-9(B)(1)(c)(4)(a-b):

(4) Aliens with Pending Change of Status or Extension of Status Applications: An alien is not ineligible under INA 222(g) even though the departure date on Form I-94, Arrival-Departure Record, passes, if:

(a) The alien files a timely application for extension of stay or for a change of status; and

(b) The application is subsequently approved. 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. [...]

So:

  • if she leaves before her I-94 expires, her visa is not voided
  • if she files a timely EOS/COS application, and she leaves after it is approved, before the new I-94 expires, her visa is not voided
  • if she files a timely EOS/COS application, and leaves while it is pending and after her I-94 expires, her visa is not voided
  • if she files a timely EOS/COS application, and leaves after it has been denied, her visa is voided

Will it affect her immigrant visa?

She should not have problems getting an immigrant visa as long as she doesn't have a ban. There is an unlawful presence ban where if she accrues 180 days of unlawful presence and then leaves the US, she triggers a 3-year ban; if she accrues 1 year of unlawful presence and then leaves the US, she triggers a 10-year ban. See 9 FAM 302.11-3. However, she does not accrue unlawful presence during the period a timely-filed, non-frivolous EOS/COS application is pending, regardless of whether it is ultimately approved, abandoned, or denied.

See 9 FAM 302.11-3(B)(1)(b)(1):

b. DHS has interpreted "period of stay authorized by the Secretary of Homeland Security," as used in this context, to include:

(1) For aliens inspected and admitted or paroled until a date specified on the Form I-94 or any extension, any period of presence in the United States up until either:

(a) the expiration of the Form I-94 (or any extension); or

(b) a formal finding of a status violation made by DHS, an IJ, or the BIA in the context of an application for any immigration benefit or in removal proceedings, whichever comes first.

and 9 FAM 302.11-3(B)(1)(b)(4):

b. DHS has interpreted "period of stay authorized by the Secretary of Homeland Security," as used in this context, to include:

(4) 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.

So:

  • if she leaves before her I-94 expires, she does not accrue any unlawful presence
  • if she files a timely EOS/COS application, and she leaves after it is approved, before the new I-94 expires, she does not accrue any unlawful presence
  • if she files a timely EOS/COS application, and leaves while it is pending and after her I-94 expires, she does not accrue any unlawful presence
  • if she files a timely EOS/COS application, and is still in the US on the date it is denied, she starts to accrue unlawful presence on the date of the denial (so she would have accrued some number of days of unlawful presence by the time she receives the denial notice). However, unlawful presence does not cause her to trigger a ban upon leaving until she has accrued 180 days of it, so she has plenty of time to leave and not trigger a ban. However, she may want to leave within 33 days of the date of denial, because since 2018, USCIS has had a policy of issuing Notices to Appear for removal proceedings to people with denied I-539 who do not leave within a 33-day period.
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  • Thanks, this is very helpful. – T Dot Aug 24 '20 at 17:20

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