extention I 94W

[marthack]

Hello
In june 2002 we put in Petition for my son (over 21 non married) to Immigrate so USA ( I 130 it should have taking 175 to 225 days to process but now they have changed it to 999 days) so in the meanetime my son came over here with a I 94W before it expired we filled for Extention of stay, it got denied with the Option of motion to reopen the petition. Well, what would be his change that they approve his stay for good?

P.S My Husband was in the Army in Germany, in his orders my son was listed as an Dependent to come with us to the United States.

Can someone Help

[JoeF]

It is not possible to extend a visa waiver. This is in the law (8 CFR 214.1(c)(3)(i)):
"(3) Ineligible for extension of stay. A nonimmigrant in any of the following classes is ineligible for an extension of stay:
(i) B-1 or B-2 where admission was pursuant to the Visa Waiver Pilot Program"
This is also mentioned in the instructions for the I-539 (under the "Who May Not File" header.)
A motion to reopen would not help.
He will have to leave.
If your son is in the US longer than the time allowed on the I-94W, he is illegal and the time for the 3/10 year ban has started.
And also, if he overstayed, he never again can use the visa waiver. He would have to get a B1/B2 visa, which, with an I-130 pending, is nearly impossible to get. The I-130 indicates immigration intent, and that is not allowed for a visitor. He actually was lucky that he got in on the waiver, because the waiver doesn't allow immigration intent, either.

[marthack]

Hi Joe

It sayed on the decion:

If you depart the United states before you accrue 181 days of unlawful presence (181 days after June 27th) you will not be supject to the three or ten years bars to admission

I called an Immigration lawyer also to make sure he is not illegal
over here he told me he was OK until they would make a decion on I539

A motion of reopen is allowed under sect. 8 CFR 103.5.

But like you sayed it may not help

We see I let you know

PS It was not his Intentions to stay. until the I 130 would be approved, but we did'nt know I 130 would take so long

[JoeF]

Yes, the 180 days thing is the 3 year ban. If he leaves no more than 180 days after the expiration of the I-94W, he is not banned.
But, the lawyer is wrong. While in general, filing an I-539 doesn't start the unlawful presence, this does not apply in frivolous filings. And since it is known that somebody on visa waiver can not extend status, filing an I-539 in such a case is considered frivolous. That means that upon denial of the I-539, the person is considered to be illegal retroactively, from the I-94W expiration date. Given that the processing of the I-539 (and the motion, if you file it) takes some time, it is easy to get past the 180 day line.
And, as I said before, since he overstayed, he can never again use the visa waiver.
Don't bother filing a motion, it would also be considered frivolous, and denied (summarily dismissed, as it is called in the law.) There is no doubt about that. The law says so.

BTW, you should never put any faith in any time frames USCIS gives. They are routinely wrong and completely off the mark.

Another thing that I just remembered: what does all this have to do with the I-130 anyway?
I assume the I-130 was filed in Family Category 1. This means there is a quota, and it takes 3 years before your son can file an I-485 (see the current visa bulletin at travel.state.gov/). And, btw, he can not file an I-485 while on visa waiver, since the waiver explicitly forbids adjustment of status (except for spouses of US citizens.)

[marthack]

since the waiver explicitly forbids adjustment of status

What means he can do nothing about that to stay over here?
Don't even a H-1B?

[JoeF]

No. Any change, extension or adjustment of status is forbidden while on visa waiver.

[usavisaseeker]

Hello,

Cam you please let are you Green card holder or citizen. on which visa your sone came. what is I 94W

Thank you.

[JoeF]

Re: I-94W

The I-94W is a special I-94 (in green color) that is given to visitors who enter the country using the visa waiver provisions. It basically means that people from certain countries don't need to obtain a visitor visa to enter the US. In other words, the requirement to have a visa is waived (hence the name visa waiver.)
This link www.immigration.gov/lpBin...cfrsec2172
has a list of the countries currently eligible for the visa waiver.