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Ameet

Overstay on B1/B2 Visa i539 pending.

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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.

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while the airline may board you (they cannot tell if your B2 has been revoked), imagine what the border folks will think...'hmmm..here's a person who said one thing to us, then quickly abandoned that story and went on to camp out in the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.

Edited by Noah Lott

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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

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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 by Ameet

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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. 

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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 by pontevecchio

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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)]

 

 

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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.

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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

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'

Alien admitted until specified date; violates status; departs after date specified. Subject ...the OP violated status by working, even if not paid.

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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.

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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]

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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.

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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) 

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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).

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

Edited by Ameet

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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).

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no one, not even the newest CO, will believe that you 'visited' the company's worksite for 8 months and did crossword puzzles...you were working, pure and simple, your bank account (foreign or domestic) would reflect that fact and therefore any B2 renewal would/should be denied rather quickly...

applicants try to create what they believe are 'clever' stories to try and hide the true facts...but logic overrules nonsense and a story about sitting by the phone in some office for eight months is about as believable as believing in perpetual motion. 

While still working, I had a case quite similar to yours...a woman, well educated in the US, had been working on an H1b....it was time for a renewal...she came back to her home country to do so, but decided she did not want to wait a few weeks for an appt...she returned to the US with her B1, telling CBP about arriving for a couple of meetings....meetings which lasted, oddly, 7 months...she had returned to once again try and renew the H1b...I saw this giant gap and asked what had occupied her time...and got a similar story...'oh, I attended meetings'....what she did not know was that I had contacted 9 different people at the US company (a big one) and not surprisingly found out she had been working...getting paid under the table...she claimed she used her savings to pay for her 7 month stay..but her local accounts showed no withdrawals....then she claimed that her husband, who was in L1 status in the US, paid for everything...his bank account in the US showed no significant outflow...then she claimed that her parents sent her money...I asked for copies of the wire transfers.,...none were available...then I presented other evidence that she had been working, to which she finally admitted having done so...then tried to blame her attorney who said it was 'ok to work because COs are stupid'...so what happened? Two things: (1) she was found ineligible for a visa under 6c(i), misrep & fraud, for having lied to our border folks about her true purpose of entering the US and having started to work the next day (2) her husband's alleged local business, the one that was supporting his L1 visa, was found by me and my fraud unit to never having been in existence, thus severing the necessary business link to create the legal basis for his transfer in L1 status to the US, so he got deported and found ineligible for future visas due to misrep and fraud..end result, they were both back home, unhappy....the CEO of this big company came to her country and tried to persuade me and the consul general to change our minds in a meeting with our ambassador...when I told the entire story of fraud and deceit perpetrated by the unhappy couple, that pretty much ended the conversation...

I encountered dozens of cases with similar patterns and claims of spending idle time in the US watching TV or cutting out paper dolls, but all of them finally admitted to having been working, because really, what else would someone be doing for months on end?

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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.

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In my experience, most people who camp out in the US far in excess of any normal vacation period, who often try a COS, fully believe that they are somehow above our laws, that just because they might have filed some piece of paper, they can stay put in the US doing just about anything they want...one day they return home, time sometimes passes, they then begin to worry a little that maybe their beliefs might not be true after all, then they go to websites like this one to collect opinions from others, hoping for some magic story or loophole they can use to return to the US and escape scrutiny....of course, if during their absence from the US, their visa expired, they'll need a new one, along with an extremely good story...I cannot recall ever hearing one that was true. Long periods of time spent in the US not in school meant work, without permission. Yet many of those applicants tried to convince me (or colleagues) that they passed the time in libraries, sight-seeing, watching TV or 'helping' friends paint their house or mow their grass....while the happy friends bestowed all sorts of goodies upon them....like free room and board, meals out, movie tickets...you name it...but in real life, no one has friends who would tolerate someone camping out in their house for months, freeloading.....it just does not happen...nor does 'visiting' a company every business day, but claiming to just have been 'hanging out' make any sense whatsoever....more amusing were the letters written by some immigration attorney retelling the same tall tales...as if their signature on a piece of paper made the stories true....

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