Overstay on B1/B2 Visa i539 pending.

[Ameet]

Hi guys.. I have 10 years multiple entry B1/B2 visa to the US. Last time when i traveled to the US, there was 250 days overstay on timely filled i539 change of status petition after i94 expired.  I got 2 RFEs which were timely complied and kept waited for the decision. But later, I left for India due to family emergency.  After one month i got an intimation from the USCIS that my petition has been abandoned & denied as i have already left the United States.

It's close to 3 years now and i have a plan to visit US next month.
1. Can i travel/ enter on the same B1/B2 visa to the United States  or i need to get the new one ?

2. Whether my overstay during the pendency of timely filled i539 petition is protected under Law and any waiver apply to that?? 

3. What all issues i have to face at the time of entry at the port?

Please suggest. Thanks for your suggestions in advance.

[care_candidate]

The issue is not that you filed I-539 in timely manner, but your overstay.

Why?

[newacct]

1. Yes. Visa invalidation does not occur when you left while before a decision on Change of Status.

2. You do not accrue unlawful presence while Change of Status is pending. You have no ban and don't need a waiver.

3. Hard to say

[Ameet]

On 1/9/2020 at 8:23 AM, Noah Lott said:

while the airline may board you (they cannot tell if your B2 has been revoked), imagine what the border folks will think...'hmmm..here's a person who said one thing to us, then quickly abandoned that story and went on to camp out in the US waiting around for some nebulous change of status to try and stay here....why wouldn't this person try it again?'....of course, you will show them some round trip tickets, which are worthless, you will claim that your earlier attempt to do a COS and stay was some last minute decision, etc, etc....but they should not believe you....because the last time you 'visited' you remained 'on vacation' for more than a year....what 'job' rewards its employees with an 15 month paid vacation? No job...which meant you were working under the table during your last 'visit'...and no doubt have plans to do it all over again...I would bring a couple of good books to read for the quick round trip flight back home.

Your visa has been electronically revoked due to the overstay and while you can certainly apply for a new one, well, just read the above and think about how a CO will view your last 'visit' and compare what you said during your first interview with what actually took place....COs do not like being lied to....at all.

While you may futilely try to argue that you just 'changed my mind' (which oddly seems to occur right after baggage claim), the CO's response (one that I used each and every time I heard that sentence) should be 'last time you applied we believed you were a bona fide B2 recipient...but this time, we have changed our mind.' Mind changing works both ways.

Thanks for your suggestions.

Well 'm professionally settled for close to 15 years in India..and i graduated from a prestigious institution in the US and since than representing a US based nonprofit in India. When i was in the US last time i planned another one year executive prog. in cyber security and artificial intelligence therefore requested change of status. I believe, school attorney gave me wrong advice. He told me there was 90 days processing time for i539 as per USCIS website so file within US or i go back to India and take visa from there which is again would be risky and expensive as you will be back from the state recently. So better to wait here but things kept on lingering for another 8 months since my i94 expired. i was going to my office every working day in US but was not paid for that. There was another loss of personal savings.

The only thing i 'm concerned that If my Visa has been electronically revoked? therefore i can't enter in the State even if i plan to travel..please clarify " Electronically revocation of Visa " in my case??

Edited January 10, 2020 by Ameet

[Ameet]

20 hours ago, newacct said:

1. Yes. Visa invalidation does not occur when you left while before a decision on Change of Status.

2. You do not accrue unlawful presence while Change of Status is pending. You have no ban and don't need a waiver.

3. Hard to say

Thanks for your reply;

1. Can my Visa be automatically electrically revoked once i overstay my i94 even if my timely filed i539 is pending?? Please Clarify. 

[pontevecchio]

Once you overstayed your I94, the visa is automatically nullified. It makes no difference whether you were awaiting an extension or not. Overstaying the I94 nullifies your visa unless a later decision was made to approve the extension after you left which would be unlikely.

You will not be allowed to board the flight.

I wish responders in this forum would not propagate erroneous information based on strong feelings about the matter.

You can certainly touch base with a lawyer before your trip to clarify your situation. 

Edited January 12, 2020 by pontevecchio

[newacct]

On 1/11/2020 at 7:13 PM, pontevecchio said:

Once you overstayed your I94, the visa is automatically nullified. It makes no difference whether you were awaiting an extension or not. Overstaying the I94 nullifies your visa unless a later decision was made to approve the extension after you left which would be unlikely.

You will not be allowed to board the flight.

I wish responders in this forum would not propagate erroneous information based on strong feelings about the matter.

You can certainly touch base with a lawyer before your trip to clarify your situation. 

It is not erroneous. From 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. [...]

The table in 9 FAM 302.1-9(B)(6) also says:
 

Quote

 

Alien admitted until specified date; submits a timely and non-frivolous application for extension or change of status; departs U.S. after expiration of Form I-94, but before a decision on the Form I-94 extension/change of status application.

 

Not Subject [to INA 222(g)]

 

 

[pontevecchio]

Alien admitted until specified date; applies in timely fashion for extension or change of status, remains in U.S. after date on I-94 and application is subsequently denied. ""9 FAM 302.9-10(B)(6) Summary of INA 222(g) Scenarios CATEGORY Subject to INA 222(g) Not Subject to INA 222(g) Alien admitted until specified date; maintains status; departs by date specified.   Not Subject Alien admitted until specified date; maintains status; departs after date specified. Subject   Alien admitted until specified date; violates status; departs by date specified.   Not Subject Alien admitted until specified date; violates status; departs by date specified, but is found by U.S. Citizenship and Immigration Services (USCIS) or the Immigration Judge (IJ) to have violated status. Subject   Alien admitted until specified date; violates status; departs after date specified. Subject   Alien admitted until specified date; stays beyond specified date; but granted voluntary departure (V/D). Subject   Alien admitted until specified date, found by USCIS or IJ to have violated status but is granted V/D; departs prior to both date on Form I-94, Arrival-Departure Record and date specified in V/D order. Subject   Alien admitted for duration of status (D/S), maintains status and departs.   Not subject Alien admitted for (D/S), violates status (not found in violation by USCIS or IJ).   Not subject Alien admitted for (D/S), found by USCIS or IJ in violation of status. Subject   Alien admitted for (D/S), found by USCIS or IJ in violation of status, granted voluntary departure. Subject   Alien admitted until specified date; applies for extension or change of status within applicable time limit prior to expiration of Form I-94; remains in U.S. after date on Form I-94; and application is subsequently approved.   Not Subject Alien admitted until specified date; applies in timely fashion for extension or change of status, remains in U.S. after date on I-94 and application is subsequently denied. Subject   Alien admitted for D/S; applies in timely fashion for extension or change of status; application is subsequently denied for reasons other than status violation.   Not Subject Alien admitted until specified date; submits a timely and non-frivolous application for extension or change of status; departs U.S. after expiration of Form I-94, but before a decision on the Form I-94 extension/change of status application.   Not Subject Alien admitted until specified date; files late application for change or extension of status; USCIS accepts late application because alien established that filing was for good cause and otherwise satisfies the requirements for retroactive application; and application is ultimately approved:   Not Subject Alien entered on Visa Waiver Program (VWP), on parole, without inspection, or otherwise without nonimmigrant visa, (NIV) regardless of whether alien overstays or violates status.   Not Subject When reading the chart, it is important to note the distinction between being admitted for a period of stay authorized by the Attorney General and being admitted for duration of status. Most nonimmigrants are admitted until a specified date that is listed on the Form I-94, Arrival/Departure record. A nonimmigrant admitted until a specified date must depart the United States on the date listed on the Form I-94 unless he or she obtains an extension of stay or change of status. A nonimmigrant who is admitted for duration of status is instead admitted to engage in the activity for which the visa was issued. In general, students (F and M), exchange visitors (J), information media representatives (I), certain Canadians, and diplomats are admitted for duration of status. The nuances of section 222(g) applicability to nonimmigrants admitted for duration of status are different than for nonimmigrants admitted until a specified date.""

Subject to222g

[pontevecchio]

I was puzzled by the reference to work. It would seem the OP has more than one post with a varying storyline. That is why most forums prohibit cross-posting in the forum.

In any case, 222g applies to the OP as per the chart.

[Ameet]

On 1/14/2020 at 7:43 AM, Noah Lott said:

and it does not matter whether you were paid or not, work= work which is not allowed while in B2 status....and no one will believe you sat at a desk doing crossword puzzles for 8 months.

I think, we are deviating from the main issue. It's all about Overstay and automatic electronically revoke of B2 visa while the pending I539 petition not about work ?? 

 [Though Sorry for the confusion,  i just saw above i put the wrong fact mixed up main profession with political/ voluntary work, about visiting nonprofit on regular basis that's not the case. I take it back. *guy is professionally settled in India and also volunteered for a US nonprofit for some noble cause =no employee-employer relationship]

[Ameet]

On 1/13/2020 at 6:05 PM, Noah Lott said:

working while in B2 status, however, meant that you violated status, which can cause other issues.

Sorry That's not the case.

[Ameet]

On 1/13/2020 at 2:36 PM, newacct said:

It is not erroneous. From 9 FAM 302.1-9(B)(1)(c)(4)(b):

The table in 9 FAM 302.1-9(B)(6) also says:
 

 

Thanks for the info. I found the same laws online and an article clearly mentioning 3 scenarios.

1. Application approved-Not subject to 222(g)

2. Application denied- Subject to 222(g)

3. Alien left US before decision and subsequently denied; Not subject to 222(g) 

[Ameet]

On 1/14/2020 at 10:53 PM, pontevecchio said:

Alien admitted until specified date; applies in timely fashion for extension or change of status, remains in U.S. after date on I-94 and application is subsequently denied. ""9 FAM 302.9-10(B)(6) Summary of INA 222(g) Scenarios CATEGORY Subject to INA 222(g) Not Subject to INA 222(g) Alien admitted until specified date; maintains status; departs by date specified.   Not Subject Alien admitted until specified date; maintains status; departs after date specified. Subject   Alien admitted until specified date; violates status; departs by date specified.   Not Subject Alien admitted until specified date; violates status; departs by date specified, but is found by U.S. Citizenship and Immigration Services (USCIS) or the Immigration Judge (IJ) to have violated status. Subject   Alien admitted until specified date; violates status; departs after date specified. Subject   Alien admitted until specified date; stays beyond specified date; but granted voluntary departure (V/D). Subject   Alien admitted until specified date, found by USCIS or IJ to have violated status but is granted V/D; departs prior to both date on Form I-94, Arrival-Departure Record and date specified in V/D order. Subject   Alien admitted for duration of status (D/S), maintains status and departs.   Not subject Alien admitted for (D/S), violates status (not found in violation by USCIS or IJ).   Not subject Alien admitted for (D/S), found by USCIS or IJ in violation of status. Subject   Alien admitted for (D/S), found by USCIS or IJ in violation of status, granted voluntary departure. Subject   Alien admitted until specified date; applies for extension or change of status within applicable time limit prior to expiration of Form I-94; remains in U.S. after date on Form I-94; and application is subsequently approved.   Not Subject Alien admitted until specified date; applies in timely fashion for extension or change of status, remains in U.S. after date on I-94 and application is subsequently denied. Subject   Alien admitted for D/S; applies in timely fashion for extension or change of status; application is subsequently denied for reasons other than status violation.   Not Subject Alien admitted until specified date; submits a timely and non-frivolous application for extension or change of status; departs U.S. after expiration of Form I-94, but before a decision on the Form I-94 extension/change of status application.   Not Subject Alien admitted until specified date; files late application for change or extension of status; USCIS accepts late application because alien established that filing was for good cause and otherwise satisfies the requirements for retroactive application; and application is ultimately approved:   Not Subject Alien entered on Visa Waiver Program (VWP), on parole, without inspection, or otherwise without nonimmigrant visa, (NIV) regardless of whether alien overstays or violates status.   Not Subject When reading the chart, it is important to note the distinction between being admitted for a period of stay authorized by the Attorney General and being admitted for duration of status. Most nonimmigrants are admitted until a specified date that is listed on the Form I-94, Arrival/Departure record. A nonimmigrant admitted until a specified date must depart the United States on the date listed on the Form I-94 unless he or she obtains an extension of stay or change of status. A nonimmigrant who is admitted for duration of status is instead admitted to engage in the activity for which the visa was issued. In general, students (F and M), exchange visitors (J), information media representatives (I), certain Canadians, and diplomats are admitted for duration of status. The nuances of section 222(g) applicability to nonimmigrants admitted for duration of status are different than for nonimmigrants admitted until a specified date.""

Subject to222g

Thanks for your suggestion: there are 3 scenarios.

1. Application approved-Not subject to 222(g)

2. Application denied- Subject to 222(g)

3. Alien left US before decision and subsequently denied; Not subject to 222(g) 

Therefore. This is the case. 

Alien admitted until specified date; submits a timely and non-frivolous application for extension or change of status; departs U.S. after expiration of Form I-94, but before a decision on the Form I-94 extension/change of status application.: Not subject to 222(g).

[Ameet]

The only issue remain is -if B2 Visa electronically revoked once i94 overstayed in my case/in third scenario?

Edited January 16, 2020 by Ameet

[Ameet]

On 1/11/2020 at 10:13 PM, pontevecchio said:

Once you overstayed your I94, the visa is automatically nullified. It makes no difference whether you were awaiting an extension or not. Overstaying the I94 nullifies your visa unless a later decision was made to approve the extension after you left which would be unlikely.

You will not be allowed to board the flight.

I wish responders in this forum would not propagate erroneous information based on strong feelings about the matter.

You can certainly touch base with a lawyer before your trip to clarify your situation. 

May i request you any evidence regarding automatically nullified B2 visa after i94 overstayed in my case as in third scenario where alien departs from US before decision and extension subsequently denied which is- Not subject to 222(g).

[pontevecchio]

On 1/16/2020 at 12:21 PM, Ameet said:

Alien admitted until specified date; applies in timely fashion for extension or change of status, remains in U.S. after date on I-94 and application is subsequently denied. Subject

3

What part of the above statement which specifically states that the individual is SUBJECT to 222(g) subject to that scenario, is not clear. ? The quote is from the Field Manual used by the State Department. Nothing else matters. 

If the visit is important enough, run specifics by a lawyer. If you want to ignore a lawyer, then buy a refundable ticket and if denied entry to the plane at the Airport in India, cancel the ticket before the plane takes off without you.