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.

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Never mail a single document to USCIS unless you do this

The documents that must be filed with USCIS in an adjustment of status, removal of condition or other green card case are time-sensitive. Your case may be denied if the right document is filed late.

Even when the right documents are filed in a timely manner they could become mishandled and lost in the US Immigration bureaucracy – yes accidents do happen at the worst times.

Leave nothing to chance. Obtain proof of delivery and date for your green card filings by using one of the following mailing methods.

1. USPS Certified Mail with Return Receipt Requested (ask a USPS employee for help if you need it)

2. USPS Express Mail Overnight Guarantee

3. FedEx or UPS

But before you pop the package in the mail to USCIS remember to make photocopies of all documents for your own immigration file.

Attorney Gary D. Goodin, for Immigration Navigator

Copyright © 2011, The Immigration Navigator

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