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retrohatao
02-12-2010, 01:50 AM
We applied for extension of Visitor visa for my mother who has 10 year multiple entry. The extension was denied. We received the denial letter on 03/14/2009 and her I-95 expired on 03/11/2009. I could get the immediate available flight and she left with in a week time on 03/18/2009 to India. So there is an extension of 7-days on visitor visa.

We are planning to bring her this year in March/April and my question is :
1. Does the overstay of 7-days extension cause problems with immigration port of entry?
Please let me know and also let me know what are all documents needed to support our claims.

Please help. TIA

krishmunn
02-12-2010, 10:17 AM
Due to overstay her Visitor visa has been automatically invalidated. She now need a new visa to enter.

She will be deported from Port of Entry if she attempts to enter using the existing visa.


when applying for a new visa, she should carry the receipt for extension applied, denial and Airline ticket/boarding card showing when she left

gc_check
02-12-2010, 10:25 AM
Don't think the information in last post is entirely accurate. Try posting in "Ask a Lawyer" section or consult an attorney to clarify.

retrohatao
02-12-2010, 10:57 AM
Thanks.
The reason I ask this question is to see if there were any people who had faced the same situation and had experience dealing with.
I can post it to any other subforum you guys direct if you think I would have more responses.

glus
02-12-2010, 11:31 AM
hi there:

INA specifically says that visa of a person who overstayed becomes invalidated/cancelled immediately after the expiration date of his/hers I-94. If one did not incur more than 180 days after the I-94 expiration, one is NOT inadmissible to the U.S., but should obtain a new visa abrad. Taking the risk to re-enter on an invalid visa can put such a person in "expediate remova" which can have more serious ramifications. Please speak to an attorney before making any decisions. Thanx.

Direct quote:

Under INA 222(g), if an alien overstays on a nonimmigrant visa, that visa is
automatically voided. In addition, the alien must apply for future
nonimmigrant visas in his or her country of nationality, unless the alien
qualifies for an “extraordinary circumstances” exemption.


Link, see page 7.
http://www.state.gov/documents/organization/87498.pdf

P.S. Extraordinary circumstances are usually really extraordinary and most often "circumstances of beyond of one's control." VERY difficult to prove in this instant case.

Best Regards,

krishmunn
02-12-2010, 11:37 AM
Don't think the information in last post is entirely accurate. Try posting in "Ask a Lawyer" section or consult an attorney to clarify.

It is accurate. Here is from Murthy Chat --

Question: Hi. Good evening. Thanks for your time. If a visitor visa extension request (someone already in the USA) is rejected, will it void the multiple entry, 10-year visa automatically, or is it only for certain cases?

Answer: The 10-year, multiple entry visa stamp is automatically void under law if the person has stayed even for a single day beyond the I-94 card expiration date. This means that if one"s I-94 card has not yet expired by the time of the USCIS decision denying the extension of status, then the person"s 10-year, multiple entry visa remains valid. But if the individual has stayed beyond that I-94 card expiration date, and then the USCIS makes a decision that is not favorable, by law the visa stamp becomes void under Section 222(g) of the INA, and the person is required to apply for all future visa stamps only in his/her home country consulate for all future visa applications. Apr-3-2006.

mantagon
02-12-2010, 12:48 PM
...their VISA will still be VALID!

My parents' request for extension was rejected, and they left the country within 30 days as suggested on the denial letter. As per the attorneys I talked to and the forums, their VISA is still valid. See:
http://immigrationvoice.org/forum/forum106-non-immigrant-visa/35960-parents-visitors-visa.html

They came back to the US last month and were detained at the POE (Newark) for about 3 hours and grilled on why they wanted to stay here for 6 months. Long story short...they were only allowed to stay for 3 months!!

Hope this helps...

retrohatao
02-12-2010, 02:01 PM
...their VISA will still be VALID!

My parents' request for extension was rejected, and they left the country within 30 days as suggested on the denial letter. As per the attorneys I talked to and the forums, their VISA is still valid. See:
http://immigrationvoice.org/forum/forum106-non-immigrant-visa/35960-parents-visitors-visa.html

They came back to the US last month and were detained at the POE (Newark) for about 3 hours and grilled on why they wanted to stay here for 6 months. Long story short...they were only allowed to stay for 3 months!!

Hope this helps...

Your reply was very helpful. I have sent you a PM, could you please check?

desi3933
02-12-2010, 02:05 PM
Don't think the information in last post is entirely accurate. Try posting in "Ask a Lawyer" section or consult an attorney to clarify.

http://www.state.gov/documents/organization/87021.pdf

[From PDF file]
9 FAM 40.68 N3 REQUIREMENT TO OBTAIN FUTURE VISAS IN COUNTRY OF NATIONALITY
INA 222(G)(2)
An alien who has overstayed the authorized period of admission may no longer use the visa with which he or she entered the United States. To reenter the United States the alien must obtain a new nonimmigrant visa (NIV) in the country of the alien’s nationality.



_____________________
Not a legal advice.

mantagon
02-12-2010, 02:55 PM
...with respect to the fact that the visitor overstayed their I-94 because of the application for extension was pending. Since the visitor left within 30 days of the decision date, their VISA does not get invalidated automatically. This is the law!!

The following will be true if a visitor simply overstays the authorized period without having any pending application for an extension.

http://www.state.gov/documents/organization/87021.pdf

[From PDF file]
9 FAM 40.68 N3 REQUIREMENT TO OBTAIN FUTURE VISAS IN COUNTRY OF NATIONALITY
INA 222(G)(2)
An alien who has overstayed the authorized period of admission may no longer use the visa with which he or she entered the United States. To reenter the United States the alien must obtain a new nonimmigrant visa (NIV) in the country of the alienís nationality.



_____________________
Not a legal advice.

desi3933
02-12-2010, 03:30 PM
...with respect to the fact that the visitor overstayed their I-94 because of the application for extension was pending. Since the visitor left within 30 days of the decision date, their VISA does not get invalidated automatically. This is the law!!

Would you mind sharing the link/source for your assertion? Since this, as you claimed, is law.

Meantime, please read this

http://www.state.gov/documents/organization/87021.pdf

9 FAM 40.68 N2.2-3
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:
(1) The alien files a timely application for extension of stay or for a change of status; and
(2) 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 the Bureau of Citizenship and Immigrations Service (BCIS), they shall be subject to a blanket exemption from INA 222(g), if the application was filed in a "timely manner" and is "nonfrivolous" in nature. A consular officer may consider an application nonfrivolous if it is not, on its face, a groundless excuse for the applicant to remain in the United States to engage in activities incompatible with his or her status. Posts may be satisfied that an alien filed in a timely manner using evidence such as the dated receipt or canceled check from BCIS for the payment of the application fee to extend or change status together with evidence of the expiration of the alien's legal status.


_____________________
Not a legal advice.

krishmunn
02-12-2010, 04:28 PM
...with respect to the fact that the visitor overstayed their I-94 because of the application for extension was pending. Since the visitor left within 30 days of the decision date, their VISA does not get invalidated automatically. This is the law!!

The following will be true if a visitor simply overstays the authorized period without having any pending application for an extension.


Check Page 2, Row 3 in http://www.state.gov/documents/organization/87023.pdf

Says --

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.


Is Subject to 222(g) .

Just because your case was overlooked possibly in error does not change the law.

gc_check
02-12-2010, 04:37 PM
Thanks for the updates. Per the link below you had provided, looks like an issue and probably better to get a new Visa stamped prior to entering US again and avoid possible issue in POE.
http://www.state.gov/documents/organization/87023.pdf

retrohatao
02-13-2010, 02:44 AM
Thanks for your input.
Has any of you experienced issue at POE or known cases having faced issues at POE? I understand from the documentation that it is not allowed. Its bit gamble, but wanted to know if there are in favorable odds. Any real cases who faced such situation( favor/adverse) is very helpful. For posting his case my special thanks to mantagon

gc_check
02-13-2010, 05:44 PM
Check the post below
http://immigrationvoice.org/forum/forum6-non-immigrant-visas/270254-222g-an-experience-with-re-entry-after-eos-denied.html#post599661

This might be an exception. But you can email consulate and check.

retrohatao
02-13-2010, 11:45 PM
Check the post below
http://immigrationvoice.org/forum/forum6-non-immigrant-visas/270254-222g-an-experience-with-re-entry-after-eos-denied.html#post599661

This might be an exception. But you can email consulate and check.
Thanks for the information. This link is very useful

mantagon
02-15-2010, 09:40 AM
INS Changes its Policy on Visa Voidance Under INA 222(g) for Aliens Who Have ... (http://library.findlaw.com/2000/Mar/21/127115.html)

In particular, and I quote:

"The INS, in cooperation with the Department of State ("DOS"), has revised its interpretation of "remain in the United States beyond the period of stay authorized by the Attorney General" for unlawful presence and the automatic voidance of nonimmigrant visas under section 222(g). The INS will now consider as a period of stay authorized by the Attorney General the entire period during which a timely filed and nonfrivolous extension or change of status application has been pending with the Service, provided the alien has not engaged in any unauthorized employment. This authorized period of stay will continue until the date the INS issues a decision approving or denying the application."

Hope this clears the matter, once and for all! Thanks!



Would you mind sharing the link/source for your assertion? Since this, as you claimed, is law.

Meantime, please read this

http://www.state.gov/documents/organization/87021.pdf

9 FAM 40.68 N2.2-3
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:
(1) The alien files a timely application for extension of stay or for a change of status; and
(2) 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 the Bureau of Citizenship and Immigrations Service (BCIS), they shall be subject to a blanket exemption from INA 222(g), if the application was filed in a "timely manner" and is "nonfrivolous" in nature. A consular officer may consider an application nonfrivolous if it is not, on its face, a groundless excuse for the applicant to remain in the United States to engage in activities incompatible with his or her status. Posts may be satisfied that an alien filed in a timely manner using evidence such as the dated receipt or canceled check from BCIS for the payment of the application fee to extend or change status together with evidence of the expiration of the alien's legal status.


_____________________
Not a legal advice.

mantagon
02-15-2010, 09:52 AM
...INA 222(g) will NOT apply in this case. Its actually, Page 2, Row 5 (according to you, 4) which applies here because it will be regarded as "Duration of Status" and not "Specified Date".

And I don't think my case was overlooked in error (IO's are far more smarter than we'd like to think).

Thanks!


Check Page 2, Row 3 in http://www.state.gov/documents/organization/87023.pdf

Says --

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.


Is Subject to 222(g) .

Just because your case was overlooked possibly in error does not change the law.

krishmunn
02-15-2010, 10:08 AM
INS Changes its Policy on Visa Voidance Under INA 222(g) for Aliens Who Have ... (http://library.findlaw.com/2000/Mar/21/127115.html)

In particular, and I quote:

"The INS, in cooperation with the Department of State ("DOS"), has revised its interpretation of "remain in the United States beyond the period of stay authorized by the Attorney General" for unlawful presence and the automatic voidance of nonimmigrant visas under section 222(g). The INS will now consider as a period of stay authorized by the Attorney General the entire period during which a timely filed and nonfrivolous extension or change of status application has been pending with the Service, provided the alien has not engaged in any unauthorized employment. This authorized period of stay will continue until the date the INS issues a decision approving or denying the application."

Hope this clears the matter, once and for all! Thanks!


Wrong again.

From your quote --This authorized period of stay will continue until the date the INS issues a decision approving or denying the application."


As we have said, the period expires on the date it is denied.

To further clarify, check this -- "the entire period during which a timely filed and nonfrivolous extension or change of status application has been pending "

In this case., the application is NOT pending and so it is NOT within authorized period of stay


BTW, an attorney has already replied OP in another thread and also, I have quoted from Murthy Chat.

mantagon
02-15-2010, 10:34 AM
...if the alien departs within 30 days of the (negative) decision, he/she does not accrue any unlawful stay, hence the VISA will still be valid, although he/she has overstayed!!

I can say this because of the following reasons:

1. http://immigrationvoice.org/forum/forum106-non-immigrant-visa/35960-parents-visitors-visa.html
Confirmed by an Attorney.

2. My attorney has said so.

3. My previous post: changes to INA 222(g)

4. http://www.state.gov/documents/organization/87023.pdf
Page 2, Row 5

5. My parents came back to the country last month (although with much scrutiny) after having gone through the same scenario.

6. http://immigrationvoice.org/forum/forum6-non-immigrant-visas/270254-222g-an-experience-with-re-entry-after-eos-denied.html

I guess, I shall rest my case with this post. I don't think that beyond the above reasons, I can convince anyone any better.

Thanks!

desi3933
02-15-2010, 10:51 AM
...if the alien departs within 30 days of the (negative) decision, he/she does not accrue any unlawful stay, hence the VISA will still be valid, although he/she has overstayed!!


That is valid only if the denial letter mentions that person needs to leave within 30 days. In that case, period of authorized stay get extended to denial date + 30 calendar days.

There is no law that allows 30 days for all denied cases. If there is one, please provide source/link.

Example: Person applied for extension on Dev 11th, got denied on Feb 11th and she departs on Feb 15th. The unlawful presence starts on Feb 12th (day after denial date) and she has accumulated 4 days of unlawful presence and this will be result in automatic visa cancellation as per INA 221(g).

You also mentioned in your post
This authorized period of stay will continue until the date the INS issues a decision approving or denying the application.
So as per your own quote, the period of authorize stays ends with denial date. Unless, person departs on same date as date of denial, the visa will be cancelled due to unauthorized stay.

One can email to consulate with dates of denial and departure date and get the answer yourself.

Traveling on expired or invalid visa carries lot of risk and person could be subject to 5 year ban.


____________________
Not a legal advice.
US citizen of Indian origin

chakdepatte
02-15-2010, 12:27 PM
Guys, I have read forums on these before. u can go by what the rule states, however, people who have overstayed have made it back. its all at the POE officers discretion. I called USCIS in my case. they said that the person can stay until the extension request is approved/declined. if declined, they must leave within 3 days to avoid future problems. for future travel back to the US they must carry the air ticket, extension notice or reason of withdrawal (in my case) and I-94 copies. then it depends on POE officer based on your travel intentions and history. frequent returning people were given less stay period and not the 6 months. some were also sent back immediatley. when talking to the USCIS officer, note thier name and badge number.

with incidents and NEwark and immigration policies in $h!thole, fine prints will always be against immigrants.

My ID is Chakdepatte and I am not a pessimist.

Oye chakdepatte.

krishmunn
02-15-2010, 06:51 PM
...INA 222(g) will NOT apply in this case. Its actually, Page 2, Row 5 (according to you, 4) which applies here because it will be regarded as "Duration of Status" and not "Specified Date".

And I don't think my case was overlooked in error (IO's are far more smarter than we'd like to think).

Thanks!

Duration of Status (D/S) does not apply to B1 holders. It is usually applied to F1. B1s have a specific date mentioned in the I-94.

Read properly -- "Alien admitted for D/S;" and B1 holders are NOT admitted for D/S -- when a B1 is Admitted , they are specifically admitted till a Specific Date. So it is Row 4 which is applicable here and the Visa has become invalid

krishmunn
02-15-2010, 07:01 PM
...if the alien departs within 30 days of the (negative) decision, he/she does not accrue any unlawful stay, hence the VISA will still be valid, although he/she has overstayed!!

I can say this because of the following reasons:

1. http://immigrationvoice.org/forum/forum106-non-immigrant-visa/35960-parents-visitors-visa.html
Confirmed by an Attorney.

2. My attorney has said so.


And other Attorneys , including Murthy said that it is cancelled. So one of the Attorneys must be wrong.



3. My previous post: changes to INA 222(g)

4. http://www.state.gov/documents/organization/87023.pdf
Page 2, Row 5


Both the above are wrong. A B1 candidate is NOT admitted D/S. A B1 holder is usually admitted with a Specific Date. So it is Page 2, Row 4 which is applicable here.



5. My parents came back to the country last month (although with much scrutiny) after having gone through the same scenario.

6. http://immigrationvoice.org/forum/forum6-non-immigrant-visas/270254-222g-an-experience-with-re-entry-after-eos-denied.html


An error or overlook does nto change the law. You cannot gurantee that every person will be as lucky as you.



I guess, I shall rest my case with this post. I don't think that beyond the above reasons, I can convince anyone any better.

Thanks!


It is simple to convince -- just quote the law.