Appealing USCIS denial of extension of visitor visa status

Extension for visitor visa status

Sometimes foreign national visiting family in the United States as a tourist may need to extend their status in the United States because of unforeseen events such as the illness of a United States citizen or LPR parent or child or for unfinished medical treatment which is not available in their home country.

Unexpected Illness-I-539 Extension of Visitor Status
It is a common mistake for foreign nationals to confuse the length of their visa with the length of their authorized stay in the United States. The visa is merely a permission to seek entry into the United States. The foreign national must return to her home country before the time on the I-94 form has expired.

A person in  the United States as a tourist (e.g. B2 status) who wishes to stay beyond the date stamped on his or her I-94 must file USCIS form I-539 with proper supporting evidence.  The evidence must show that he or she is intends to return to the country of residence and it must also show that the person has the financial resources to support herself in the United States (and the source of the money). The extension should typically be filed 4-5 weeks before the end of the time stamped on the I-94 form. Do not wait until the last-minute.

Keep proof of filing

The mailed application for extension should also be accompanied by proof of filing such as USPS certified mail with return receipt requested. In case the USCIS claims to not to have received the application, the foreign national can prove that he did not accumulate unlawful presence in the United States because he made a timely file application for extension of status. A foreign national may also do a filing of form 539 online.

USCIS response to a filing

The USCIS may grant the I-539 application, request further evidence (RFE) or deny the application. Sometimes the application may be denied after the USCIS receives further evidence. In practice some RFE notices are vague. A foreign national who does not understand what the USCIS wants may send irrelevant evidence or insufficient evidence to prove eligibility.

At other times the USCIS reviewing officer gets it wrong and sends the foreign national an improper written notice of denial. The notice will set out the reasons for the denial and require the foreign national to leave the United States within (30 or 33 days). This notice also informs the foreign nationals of her right to appeal within 30 days of the decision (33 days if the decision was mailed).

Appeal to the AAO through the USCIS

The foreign national has 30 days to appeal the unfavorable decision to the Administrative Review Office in Washington DC. Do not sent the appeal directly to the AAO. Rather it sent it to the USCIS Service Center that made the unfavorable decision. The AAO considers the extension of stay afresh and is not bound by the USCIS.

At the service office a reviewing officer will look at the appeal. He or she may either reverse the decision and grant the foreign national the extension of stay or send the appeal to the Administrative Appeal Office which will consider the appeal and any briefs and make a written decision.

Do not appeal without an immigration attorney

A person seeking to appeal a denial should not go it alone. He or she should contact a competent immigration attorney to help with documentation and drafting of a legal brief with any new evidence that the foreign national wishes the AAO to consider. The attorney may also be able to make a written request to the AAO for an extension.

If the foreign national wishes to withdraw the appeal and leave the United States, he or she must do so in writing.

If you or a loved one wishes to extend your stay in the United States or you have had your appeal denied, please call my immigration law office of at 888-747-1108 for help.  I will do my best to help.

Share This Post

Affidavit of support form I-864

What is an affidavit of support?

If you are a United States citizen or lawful permanent resident (LPR) seeking to sponsor a family member to immigrate to the United States (an I-130 petitioner) in most cases you must file an I-864 affidavit of support form[1] for the sponsored immigrant.  This is to satisfy the immigration authorities that you are willing and able to support the person financially (with income or assets from lawful sources) so that the sponsored immigrant will not become a financial burden to the United States. An affidavit of support is to be completed truthfully and with care. A sponsor (or co-sponsor) signs the I-864, affidavit of support under penalty of perjury.

Affidavit of Support

 

 

 

 

 

 

 

 

 

 

A sponsor on an affidavit of support must satisfy all the following three requirements;

  1. A U.S. Citizen, national or LPR (a human being not a corporation);
  2. At least 18 years old; and
  3. “Domiciled” within the United States or in any U.S. territory or possession.

Prove enough income

The most common means of satisfying the immigration authorities that the sponsor can financially support the sponsored immigrant is by proving income equal to or greater than 125% (100% for active duty military) of the poverty level. The most common means to prove enough current income is by submitting a copy of the earlier year federal income tax returns (adjusted gross income).

Get a Co-sponsor

In some cases the income of the US citizen or LPR falls short of that required to sponsor a family member.  In such a case the petitioner can seek a co-sponsor. A co-sponsor is someone who meets all three requirements of a sponsor but who satisfied the minimum income requirements. The co-sponsor and sponsor are jointly and severally liable to financially support the sponsored immigrant until he or she become a United States citizen,  acquires 40 “qualifying quarters” of employment as defined by social security law, or loses immigrant status by misconduct or departure from the United States with intent to abandon LPR status.

Join household assets and income

The petitioner who does not make enough income can also combine assets and income of the members of his household. There is no requirement in the law that a household member be a U.S. citizen or LPR. Each household member must be at least 18 years and execute form I-864A. The household member must give proof of relationship to the petitioner and current residence. Each member agrees to make his assets and income available to support the sponsored immigrant. If household assets are used the assets  must be available meaning “readily converted into cash within one year.” A member of the petitioning relative’s household may even include a person not living with the petitioning relative but claimed as a dependent on her tax returns.

In cases where the sponsor or the principal sponsored immigrant has significant assets (e.g. savings, real estate, stocks and other assets) or income which are available to support the intended immigrant, these may also be used to show adequate means to support the sponsored immigrant at 125 percent of the poverty level or higher.

 



[1] A properly executed and signed I-864 affidavit of support form is required in most family based immigration cases. This is different from the I-134 affidavit of support form for some non-immigrant visas such as K-1 and K-3 visas.

Resources

1. I-864, Affidavit of Support Instruction Sheet

 

Share This Post

The marriage green card interview – what you need to know

After you have filed your adjustment of status package including the marital petition, form I-130, form I-485 application to adjust status and form I-765 application for employment authorization document, USCIS will send you a biometrics notice to take fingerprints followed by a notice in the mail telling you when and where to attend a green card interview. To be sure you get the interview notice you must change your address with USCIS while your applications are pending by mailing a completed and signed form AR-11 Change of Address form or completing a Change of Address online.

Purpose of the marriage green card interview

The purpose of the interview is to verify your eligibility for adjustment of status, the good faith of your marriage and the financial status of the petitioner. While you should stay calm and stay confident in your marriage you should also prepare for this interview. An immigration officer may deny even people in legitimate marriages who do not convince him or her that their marriage is in good faith and not solely for gaining immigration benefits.

What to do before the interview

You must attend all interviews when you receive a notice. In the very rare event, you cannot attend because of an emergency you must contact the USCIS service office as soon as possible to ask that it re-schedules the interview. Please be aware that requests to re-schedule an interview are often not well received. If you do not know the exact location of the USCIS office and the parking arrangements you should do a test drive to make sure you can get there on time. Collect and organize green card interview documents

Before the interview you must make sure that originals of all documentation submitted with your application including birth certificates, marriage certificates and passports, official travel documents, and Form I-94 (even if they have expired) are well-organized in a file for easy access when requested by the immigration officer. In addition you should include up to date copies of bills and statements that show joint responsibility for living expenses of your home as well as commingling of funds (e.g. joint bank statement). If you have had any child(ren) together you should bring along the birth certificate(s) of the child(ren) and photos of the two of you with the child(ren).

The green card interview - married couple and baby at home

 

In the weeks before the interview: Communicate with your spouse and pay attention to the minor details of your marriage

In addition to organizing the green card interview documents in an orderly file, you should communicate with your spouse about the details or her live (current and past) and the details of yours, when you met and how your relationship developed. You should also pay particular attention to the layout of your house and life together (e.g. who pays what bill). If you are not living together you probably will be found out and you application will most likely be denied. The USCIS is looking for evidence that you are actually living together as husband and wife and trust each other. Remember that it is your responsibility to prove that your marriage is genuine and was not entered into to get around immigration laws.

On the day of the interview

On the day of the interview be sure to carry the interview documents and the USCIS interview notice. Make sure that you and your spouse dress appropriately and arrive for the interview on time. If you do not speak English you should bring along an interpreter with you who is not your spouse. You may also be accompanied by your attorney.

After you have passed security at the USCIS office you will hand in the interview notice at a reception window and wait to be called. When the immigration officer is ready he or she will call you and lead you to his or her office.

The interview

The immigration officer will ask you to raise your right hand and swear (affirm) to tell the truth. If you have a translator, the immigration officer will also swear in him or her to give exact translations. It is important that the translator translate each question and each answer sentence by sentence. The translator must not explain things or answer questions on your behalf.

As you are under oath be sure to tell the truth. Giving false testimony under oath will not just result in denial of your green card but it is also a crime.  You should listen carefully to the officer and only answer the questions that the immigration officer directs to you personally. Do not answer any questions addressed to your spouse without first asking permission from the immigration officer if you may do so. If you do not know the answer to a question, say you do not know.  If you did not hear the question, ask the immigration officer to repeat the question.

  • The immigration officer will ask to see the original documents based on your application. These include your original passport, I-94 and proof that your spouse is a U.S. citizen or LPR.
  • The officer will then test whether your marriage is in good faith by asking you questions that a married couple are expected to answer. Be ready to answer private questions about yourself, your spouse, how you met and your relationship – your living arrangements. Typical questions for green card interviews are about how you met, where you were you living at the time, what were each of you doing when you met, the day-to-day activities of your spouse and the physical arrangement of your house or apartment. You should know the name of spouse’s parents, workplace and supervisor and all the basic things about your spouse. The interviewer wants to find out how comfortable and trusting you are with each other. For a marriage relationship the key words are ‘trust’ and ‘communication with each other.’
  • The immigration officer may then ask about the financial status of your spouse.

The green card interview decision

A lot depends on the particular immigration officer but if the immigration officer decides that you have a bona fide marriage he or she will approve your application. It is likely that he or she will give you a decision on the spot and you will get a green card in the mail in a few weeks. Alternatively he or she may tell you to await a decision by mail.

Stokes Interview

If you fail to convince the immigration officer that your marriage is a bona fide marriage, it is very likely that USCIS will schedule you for a follow-up Stokes interview. The Stokes interview is similar to the first interview except that you and your spouse will be separated and asked more in-depth and personal questions. The immigration officer will  compare your answers to those of your spouse and if there are any discrepancies  you will be given an opportunity to explain the discrepancies.

Gary Goodin, Immigration Attorney

Copyright © 2011, the Immigration NavigatorTM

Share This Post