Appealing USCIS denial of extension of visitor visa status

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).

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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How to obtain US citizenship for a child born outside the US and living permanently abroad

Under present law a child born abroad to only one parent who is U.S. citizen parent, and the other parent a foreign national, does not get U.S. citizenship at birth unless the citizen parent meet a specific U.S. physical presence requirement. Before the child was born, the citizen parent must have lived in the United States for a total period of at least five years with two of those years being after the citizen parent was 14 years old.

For a citizen parent that does not meet this physical presence requirement there is an alternative of expedited naturalization.

Child Citizenship under the Child Citizenship Act

Under present law a child born abroad to only one parent who is U.S. citizen parent, and the other parent a foreign national, does not get U.S. citizenship at birth (by filing Form DS-2029) unless the citizen parent meet a specific U.S. physical presence requirement. Before the child was born, the citizen parent must have lived in the United States for a total period of at least five years with two of those years being after the citizen parent was 14 years old.

For a citizen parent that does not meet this physical presence requirement there is an alternative of expedited naturalization.

Who is eligible for citizenship?

A child born and living permanently abroad may get a certificate of citizenship when all the following five (5) requirements exist

  1. At least one parent is a citizen of the United States, whether by birth or naturalization. If the U.S. parent is dead, the applicant must show that at least one parent was a U.S. citizen.
  2. The U.S. citizen parent was physically present in the United States for at least 5 years, at least two of which were after the age of 14 or the U.S. citizen grandparent was physically present in the United States for at least 5 years, at least two of which were after the age of 14.
  3. The child must be less than 18 years and unmarried.
  4. The child is residing outside of the United States in the legal and physical custody of the applicant, and
  5. The child is temporarily present in the United States by a lawful admission, and is maintaining lawful status.

Citizenship for an adopted child

A U.S. citizen parent may also apply for a certificate of citizenship for an adopted child. In addition to the above requirements, the applicant must show that the adoption was final before the child’s sixteenth (16th) birthday, the U.S. citizen parent had legal custody and the child has lived with the parent for at least two (2) years.

The application for a certificate of citizenship

  • An application for a certificate of citizenship by the parent, grandparent or legal guardian on behalf of the child must be filed on Form N-600K with the correct fee and supporting documents while the child is living at a foreign address.  The application may be filed with any USCIS district office in the United States. The citizen parent may indicate any preferred interview dates.
  • The citizen parent should allow at least ninety days to enable USCIS to make a preliminary decision and schedule an interview. The parent will recieve a Form G-56 General Call in Letter, from the Deaprtment of Homeland Security (DHS) at the foreign address signifying that the child has a naturalization interview to attend in the United States.
  • The citizen parent will use the appointment notice to get a b2 visitors visa for the child (if not from a Visa Waiver Program country) from the U.S. consulate abroad. The b2 visitor visa is for the explicit purpose of attending the USCIS interview. The child must intend to return abroad as condition for obtaining the b2 non immigrant visa. Proof that his parents live abroad is usually enough to prove non-immigrant intent. 
  • The U.S. citizen parent, grandparent or legal guardian should go with the child to United States to the USCIS interview and carry supporting documents.
  • After approval at the scheduled interview and after taking and subscribing to the oath of allegiance inside the United States before an officer of USCIS the child becomes a United States citizen and gets a  certificate of citizenship.
  • The child is free to stay in the United States.

It is important to remember that USCIS must approve the application for quick naturalization before the child’s eighteenth (18th) birthday. Therefore the N-600K filing should be done in a timely manner.

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Backdating passport stamps

Non-US passport holders (holders of green cards and non-immigrant visas) who illegally “backdate” or “back-stamp” their foreign passports to forge their actual physical presence in the United States are subject to removal and cancellation of their US visas.

The illegal practice of backdating arises because visitors who spend too much time in the States may be thought of as having immigrant intent, and permanent residents who spend too much time outside the U.S. may be deemed to have abandoned their U.S. Permanent Resident status.

I have a 10-year multiple B-1/B-2 visa. I entered the U.S., and was given six months by the Immigration Officer at the airport, but overstayed by only a few years.  

I would like to take a brief trip to Jamaica, in order to visit my family, but I need to return for my job. I was told that if I “back date” or “back stamp” the immigration entry date to Jamaica in my passport, to cover up that I overstayed, that I won’t have any problems.

Non-US passport holders (holders of green cards and non-immigrant visas) who illegally “backdate” or “back-stamp” their foreign passports to forge their actual physical presence in the United States are subject to removal and cancellation of their US visas.

Passport Stamps

 

The illegal practice of backdating arises because visitors who spend too much time in the States may be thought of as having immigrant intent, and permanent residents who spend too much time outside the U.S. may be deemed to have abandoned their U.S. Permanent Resident status.

A non-immigrant who backdated his passport may face the cancellation of his US visa and expedited removal upon seeking admission to the United States. Additionally a non-immigrant who overstayed in the United States for more than 6 months and accumulates unlawful presence and departs the United States may be barred from admission for 3 years or 10 years. Furthermore back-stamping or back-dating your passport constitutes fraud, and could result in a lifetime ban from the United States. A green card holder who is deemed to have abandoned his status may be subject to deportation.

Backdating is no longer effective for proving actual physical presence in the United States because the Department of Homeland Security now uses various databases for obtaining arrival and departure evidence. These include the US VISIT program under which biometrics and I-94/I-94W of non-US passport holders are checked. Though biometrics is not checked upon departure at this time, this may soon be the case. Another database is the Electronic Advance Passenger Information System, or eAPIS which allows airlines and other carriers to furnish lists of arriving and departing passengers to the Customs and Border Protection (CBP).  

The best thing to do is to be truthful to the US immigration authorities and to use your visa or green card for its intended purpose. Persons on a non-immigrant visa who want to live and work in the United States should seek advice from an immigration attorney about their immigration and non-immigrant visa options. Green card holders who wish to stay outside of the United States for extended periods should seek legal advice about avoiding the harsh immigration consequences of doing so including the consequences for becoming a U.S. Citizen.

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B2 visa extension of stay

I came to the US from Jamaica on a visitor visa to spend some time with my daughter and see my grandchildren. Three months ago month my daughter slipped on ice and broke her leg and now she relies on me to move around and accompany her when she goes out. The doctor treating my daughter said her leg will take two more months to heal but only one month remains on my I-94 form.

How do I extend my stay in the United States?

To maintain your non immigrant status you must file an application for extension of stay before your current period of authorized stay, on your I-94, expires. It is important that you file immediately. If you fail to apply for an extension before your current authorized stay expires, in the future you could be denied readmission into the United States or a green card.

The application process to extend your stay depends on the type of non-immigrant status that you have. In your case because you have B2 non-immigrant status you must use USCIS Form I-539 with the required fee and supporting evidence. The application must be made to the USCIS service center with jurisdiction for your area.

Required documentation

Original or Photocopy (front and back) of your I-94 Arrival-Departure document. If your I-94 is lost you must file and submit USCIS Form I-102 with the appropriate fee together with Form I-539.
Photocopy of your passport showing that it is valid for the period of your intended stay.
Written statement/letter

You must also submit a written statement explaining in detail;

The reason for the extension,
Departure arrangements, and
Any effect the extension would have on your permanent residence and employment in Jamaica.

I came to the US from Jamaica on a visitor visa to spend some time with my daughter and see my grandchildren. Three months ago month my daughter slipped on ice and broke her leg and now she relies on me to move around and go with her when she goes out. The doctor treating my daughter said her leg will take two more months to heal but only one month remains on my I-94 form.

How do I extend my stay in the United States?

To keep your non immigrant status you must file an application for extension of stay before your current period of authorized stay, on your I-94, expires. It is important that you file immediately.

The application process to extend your stay depends on the type of non-immigrant status that you have. In your case because you have B2 non-immigrant status you must use USCIS Form I-539 with the required fee and supporting evidence. You should direct the application to the USCIS service center with jurisdiction for your area.

Required documentation

  1. Original or Photocopy (front and back) of your I-94 Arrival-Departure document. If your I-94 is lost you must file and send USCIS Form I-102 with the proper fee together with Form I-539.
  2. Photocopy of your passport showing that it is valid for the period of your intended stay.

Written statement/letter

You must also send a written statement explaining in detail;

  1. The reason for the extension,
  2. Departure arrangements, and
  3. Any effect the extension would have on your permanent residence and employment in Jamaica.

Supporting evidence

A signed affidavit from your daughter explaining why you are seeking to delay your departure would be persuasive. Your daughter should also get a letter written by a recognized, licensed health care practitioner treating her. The practitioner should write the letter on his or her own professional letterhead stationery and it should state the specific (explained) medical condition that has caused you to seek an extension to spend more time with your daughter and grandchildren.The letter should also specify the dates involved in your daughter’s injury and that the practitioner expects the medical condition to end at a specified time.

You should also send a copy of your return ticket to Jamaica showing the date of your intended departure. You should show that you have funds to support yourself for the period of the intended stay in the U.S. If you have a job in Jamaica you should send a letter from your employer temporarily excusing you from work for the extra time you will spend in the United States.

What if authorized stay has expired?

The USCIS may exercise discretion to excuse your failure to apply before the end of your authorized when;

1.the delay was due to extraordinary circumstances beyond your control

2. the delay is right for the circumstances

3. you have not violated your non-immigrant status in other ways (e.g. unauthorized work)

4. you are still a good faith visitor to the United States, and

5. you are not in deportation or removal.

Processing time and effect of prompt application

The processing time for I-539 applications can take up to 3 -4 months. The time in which your application is pending will continue your authorized stay in the United States. The current filing fee for a Form I-539 application is available here. If USCIS approves your extension of stay application it will do so in six month increments.

Online Resources

B Visa Refusal Rates by Country

 

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How to obtain a B1 B2 Visa

The B1 B2 Visa is a non-immigrant or visitor visa to enter the US for a limited time for business (b1 visa) and pleasure (b-2 visa) . Applicants for this visa must complete visa application Form DS-160 online, pay the visa application processing fee and schedule an interview appointment.

The B1 B2 Visa Requirements

The requirements that the US Consular official will assess in determining your eligibility for a B1 B2 visa are:

1. You must live in a foreign country which you do not intend to abandon.
2. You must intend to enter the US for a limited time, and
3. You must also show that your sole purpose in visiting the US is for lawful business or pleasure.

The B1 B2 Visa is a non-immigrant or visitor visa to enter the US for a limited time for business (b1 visa) and pleasure (b-2 visa) . Applicants for this visa must complete visa application Form DS-160 online, pay the visa application processing fee and schedule an interview appointment.

The B1 B2 Visa Requirements

The requirements that the US Consular official will assess in determining your eligibility for a B1 B2 visa are:

1.       You must live in a foreign country which you do not intend to abandon.

This means residence in any foreign country. If you are an Indian national but live in Canada as a landed immigrant that is fine provided you can show that you do not intend to abandon residence in Canada.

To show that you do not intend to abandon residency in a foreign country you may use supporting documents that show;

a.       permanent employment (or on-going education for students),

b.      business and financial ties ( e.g. title to land and ownership of a local business),

c.       close family ties (e.g. marriage certificate, copies of your children’s birth certificates, school records showing that the children live with you), and,

d.      your involvement in social and cultural activities in the foreign country where you live.

The fact that you would leave dependent children, spouse or family behind in coming to the United States is not enough by itself to show a strong reason to return. Previous good use of a U.S. visa is important evidence of an intention to return to your residence outside the United States.

2.       You must intend to enter the US for a limited time

To show your intention to enter the US for a limited time, you must have a very specific purpose for your trip (e.g. medical treatment, a trip to Disney World, buying equipment for a business, a business conference etc.) and a realistic plan.

The purpose of your trip must match length of your stay in the United States and you should show that you have the money to carry out the purpose of your trip (pay slips, bank statements).

3.       You must also show that your sole purpose in visiting the US is for lawful business or pleasure.

While the B1 B2 visa allows a visitor to make business deals related to employment and business in a foreign country, it does not allow employment in the United States for U.S. employers.

The US Consular officer will deny your B1 B2 application if you fail to show any of these US visa requirements. Security checks and alerts may also result in denial or delay of a U.S. tourist visa or denial of admission into the United States at a port of entry.

The B1 B2 Visa does not guarantee admission

Visa issuance alone does not guarantee admission into the United States.  Customs and Border Patrol agents will inspect the B1 B2 visa holder and decide whether to admit him upon his arrival at a port of entry. The longest time the visa holder must stay in the United States depends on the date stamped on the I-94 Arrival Departure record received upon admission. An immigration officer may grant admission to any B-1 visitor for business or B-2 visitor for pleasure for not more than one year and grant extensions of temporary stay in increments of not more than six months each.

The Visa Waiver program

Nationals of countries that take part in the Visa Waiver Program, VWP do not need a b1b2 visa to enter the United States for business and pleasure. They may enter the United States for up to 90 days for business or tourism without any extension of stay or change of non-immigrant status.

International visitors to the United States from visa waiver countries must get travel approval through the Electronic System for Travel Authorization (ESTA). Visit the ESTA web page on the Department of Homeland Security, Customs and Border Protection website for more information. 

Currently, there are 36 Visa Waiver countries, as shown below:

Andorra Hungary New Zealand
Australia Iceland Norway
Austria Ireland Portugal
Belgium Italy San Marino
Brunei Japan Singapore
Czech Republic Latvia Slovakia
Denmark Liechtenstein Slovenia
Estonia Lithuania South Korea
Finland Luxembourg Spain
France Malta Sweden
Germany Monaco Switzerland
Greece the Netherlands United Kingdom

Applicants for a b1 b2 visa should visit the US Embassy or Consulate website where they will apply for more country-specific instructions and b1 b2 visa requirements.

Attorney Gary D. Goodin, for Immigration Navigator

Copyright © 2011, The Immigration Navigator

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