AskVisalaw.com

Posted on: January 24th, 2018
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In our AskVisalaw.com section of the SIB, attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari’s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.

If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can’t answer every question, but if you ask a short question that can be answered concisely, we’ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.

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QUESTION: My dad has a B-2 visitor visa that is valid for 10 years. He received the visa in 2015. He came to visit me and was allowed to stay for 6 months. But before the end of the 6 months he applied for an extension, asking to be able to stay for another 6 months. The application for the extension was denied and he went back to Morocco after we received the denial. Now I want him to come back to USA. Will he have trouble coming to the US on his visa?

ANSWER: Unfortunately, under INA Section 222(g), if someone stays in the US past the expiration date on their I-94, their visa automatically becomes revoked. Where a timely and nonfrivolous application for extension of status or change of status is filed, the applicant will be considered to be in an authorized period of stay while the application is pending, and therefore a Section 222(g) revocation of the visa would not be triggered while the application is pending. However, where the application is denied, the authorized period of stay ends on the day of the denial. Therefore, if the application for extension of status or change of status is denied after the expiration date on the original I-94, and the applicant does not leave the US until after the application for extension of status or change of status is denied, then Section 222(g) applies. The person’s visa is automatically revoked. In such a situation, the person is required to apply for, and obtain, a new visa at the US consular post abroad before they can return to the US. Also, in such a situation, if the person remained in the US 180 days or more past the date that their application for extension of status or change of status was denied, they may be subject to a 3-year bar from being able to obtain a new visa under INA Section 212(a)(9)(B) (it would be a 10-year bar if they stayed in the US 365 days beyond the date of the denial).

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QUESTION: I applied for an I-539 stay extension, but I left before the expiration of my I-94. A few months later I checked that my application was denied. Will I have my visa cancelled?

ANSWER:   No. If someone leaves the US before the expiration date on their I-94, their visa will not be automatically revoked under INA 222(g), even if they filed an application for extension. Also, if they leave while their timely filed application for extension is still pending, and the application for extension is denied after they leave the US, then also their visa will not be automatically revoked under INA 222(g).

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Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.