QUESTION
What should I do if my application for B2 Visa extension was not approved on time, should I stay or leave?
Asked on Dec 15th, 2013 on Immigration - Washington
More details to this question:
My husband and two children are dual US/AUS citizens, I am Australian only. We reside in Australia and visit the US every two or three years for about 4 weeks. I usually visit under the VWP for less than 90 days. On this occasion, I have been granted a B2 Visa as we wanted to travel the US extensively and visit friends/relatives for a longer period of time. I was given 6 months stay until January 23, 2014. On November 1, 2013 (3 months and 1 week after being in the US) I applied for an extension until 18 July 2014. I feel my application was good, I provided evidence of residence in and the necessary ties to Australia and evidence showing that we were required to return to Australia to continue employment etc, also showed evidence of financial support for our trip. If I haven't heard back by 23 Janaury 2014 and I overstay in anticipation of being granted the extension, what are the implications of receiving a rejection? Can I still use the VWP and ESTA in the future or will I need to apply for a Visa each time I wish to return? If I leave the US before 23 January and go to Europe for a few weeks and come back to the US, I understand my application becomes void. Is it likely the CBP official will turn me away at the border but let my US family in as they are citizens? Thanks for any advice you can provide.
2 ANSWERS
Business/ Commercial Attorney serving Bellevue, WA
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Lana Kurilova Rich PLLC
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Well, if you overstay, you may be unable to use VWP and they could actually deny your tourist visa as well, so your only option would be for your US citizen husband to sponsor your green card, but that is not the best option in your case since you all live in Australia and have no plans to relocate to the US. I would hope that you will hear back on your visa extension by January 23rd. If not, I would leave and re-enter either on VWP or get another B2 visa if you plan on staying longer in the U.S. This is kind of like being stuck between a rock and a hard place; there is no really good definitive answer when it comes to the U.S. visas.
Answered on Dec 19th, 2013 at 4:21 PM
Thomas J. Rosser
If you haven't heard back by January 23, 2014 on the adjudication of your I-539 Application to Extend Status you are still "in status" (not an overstay) until you are notified as to the decision since you "timely filed" for the requested extension while still in valid B-2 non-immigrant visa status. However, should your extension request be denied you should be prepared to depart immediately and consider returning on VWP or on a new B-2 entry. You are correct in that if you depart during the pendency of the extension application your application will be deemed "administratively abandoned" and the extension will be automatically denied.
Answered on Dec 19th, 2013 at 4:21 PM