Answering "Have you ever been unlawfully present, overstayed the amount of time.." in DS 160 after I-539 was denied as a result of missed biometric due to early US Departure

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Hello everyone,

  • My mother in law visited us (B2 visitor visa) in 2020 (Arrival: Jan 01, 2020, I-94 expiry date: June 30, 2020).
  • Due to covid / air travel ban, we had to apply for her extension ( Applied on May 25, 2020 ).
  • She departed the USA on Oct 01, 2020.
  • We received her biometric appointment letter in Feb 2021 (Appointment date: March 10, 2021). She couldn't attend the appointment because she departed the US like 5 months ago.
  • On Aug 31, 2021, we received a notice saying her I-539 / extension application was denied due to missing the biometrics appointment. 

I have read in this forum that because I-539 was filed in a timely manner and the extension of stay was pending when she departed the US, the stay between July 01, 2020 to Oct 01, 2020 may not be considered as unlawful presence.

Now to the question: My Mother in law will be renewing her visitor visa (Dropbox method) and we were wondering how to answer the following question in DS-160: 


Have you ever been unlawfully present, overstayed the amount of time granted by an immigration
official or otherwise violated the terms of a U.S. visa?

Do we answer YES and explain what happened ? OR

If we answer NO, where do we explain about the timely I-539 application, departure before biometric appointment etc ? 

Thank you 

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On 2/19/2024 at 1:31 PM, pontevecchio said:

It is not considered an unlawful presence. It is a lawful presence.

No explanation is necessary. 

Keep copies of relevant documents like proof of leaving, application for EOS, and the result from USCIS.

But the question is not only asking about unlawful presence. It also asks about overstaying the amount of time granted, and about violating the terms of a visa.

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