I-539 Extension of Stay on B2 Visa, What is the status during waiting time?


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Dear Murthy advocates/advanced users/users,


I have my parents here on B2 visa and their current I-94 ends on Dec 19th (6 months). We applied for Extension of Stay on Oct 27th to extend their stay for 3 more months as my Sister is visiting with their family from UK for Christmas. 


Is it safe for them to extend their travel till sometime end of Jan/ feb, as we are still waiting on the Extension of Stay via form I-539? I heard on many forums that there is a huge delay as to when USCIS responds back on the inquiry for extension of stay via Form I-539. 


How do airlines perceive this stay in US? They are flying back through British Airways with a layover of about 5 hrs in London heathrow.





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I found this posting online, not sure if the memo is still Valid:


As noted in 40.9.2(b)(2)(G) of this AFM chapter, by statute, an alien does not accrue unlawful presence for up to 120 days while a nonfrivolous EOS or COS application is pending, provided that the alien does not work and/or has not worked unlawfully. This is referred to as "tolling:" while the application is pending after having been properly filed, the alien will not accrue unlawful presence. The above described statutory exception applies to section 212(a)(9)(B)(i)(l) of the Act; it does not apply to section 212(a)(9)(B)(i)(ll) or ©(i)(l) of the Act.



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As long as the I-539 is pending, they are in legal status, for up to 240 days (not 120 as that posting says.)

However, if they stay beyond the current I-94 date, and the extension gets denied, they would be overstaying, and their visas would automatically be invalid.

If the I-539 is still pending when the I-94 expires, it is recommended to leave at that time.

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  • 1 month later...

just to check on above as I am in same boat


 "if your parents leave after I94 expiry and denial of I-539 petition their visitor visa automatically becomes void" ,


that means next time whey they travel US ,they need new VISA stamping and what ever years left on current visitor visa are gone?

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  • 8 months later...

We got an approval for our I-539 for our extension of stay, from 12/20/2015 to 1/1/2016, but the notice date was on March 4, 2016 and my Father left to India on 1/1/2016 (we were sheer lucky), but my Mom left to India on Feb 7th 2016. Does it make her stay illegal as she stayed more than what was approved, but the approval notice came after she left to India. 

Does she have to reapply for a Visa or take her chances at the Port of entry for any future visits, (assuming her old visa is still valid)

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