B2 Visa Extension Denied after Leaving USA, Will it affect Reentry?

[bmanick]

My father came to the USA on 27th January 2020 with a return flight back for May 2020. Due to covid and disruption of flight service, in May 2020, we applied for his B2 extension (I-539) - (first time) before his I-94 expiration in July 2020. As the situation got worse, we filed a second I-539 application again in January 2021. Due to progression of COVID and Delta variant, we continued to watch for the best opportunity to send him back to India. However, on Jun 17th 2021, he attended the biometric appointment and he was able to leave July 13th 2021 while first extension results were still pending and 2nd extension still shows case received.
Only on December 14th 2021, we were notified that the (first)extension was denied, stating though biometrics were given, his fingerprints could not be used for background verification while also acknowledging his departure date in the denial letter.




My questions are: 1. Will this denial automatically void his 10-year multi-entry visa to the U.S. even though he left USA before a decision was made on his first I-539 application? Can he travel using this current B2 Visa?

2. Was his stay in the U.S. from the I-94 expiration date (july 26 2020) till his departure in July 2021 considered illegal despite the fact that his I-539 case was pending at that time?

3. Will this cause issues for future VISA or re-entering the USA?

4. Do I have to file an appeal I-290B (even though the 33 days time for appeal has expired) to ensure his case was justified under the current circumstances so it does not create problems for future entry?

[flyingron]

1. No. A decision not to allow you to extend a single visit doesn't affect your ability to use the visa. It just means you have to leave the US for a bit.
2. If he was in status when he applied and he before or promptly after getting turned down for the extension, it will not be counted against him.
3. Likely not (especially if he spends more than a trivial amount of time outside the US).
4. There's nothing to appeal. He left the country. Even if it had been granted, it's no longer applicable.

[newacct]

1. Since he left while a timely-filed, non-frivolous Extension of Stay or Change of Status was pending, his visa was not voided by INA 222(g). See 9 FAM 302.1-9(B)(1).c(4)(b):

In addition, if an applicant departs after the date on the Form I-94 passes, but before their application for extension or change of status has been decided by USCIS, they must be subject to a blanket exemption from INA 222(g), if the application was filed in a "timely manner" and is "nonfrivolous" in nature.

2. "considered illegal" is not a well-defined term. He did not accrue any "unlawful presence" for the purposes of the 3-year or 10-year bans. See USCIS Adjudicator's Field Manual chapter 40.9.2(b)(3)(C) (on page 88 of this PDF):

Departure from the United States while a request for EOS or COS is pending, does not subject an alien to the 3-year, 10-year, or permanent bar, if he or she departs after the expiration of Form I-94, Arrival/Departure Record unless the application was frivolous, untimely, or the individual had worked without authorization.

And 9 FAM 302.11-3(B)(1).b(4)(b)(ii):

b. (U) DHS has interpreted "period of stay authorized by the Secretary of Homeland Security," as used in this context, to include:
(4) (U) For individuals who have applied for extension of stay or change of nonimmigrant classification and who have remained in the United States after expiration of the I-94 while awaiting DHS's decision, the entire period of the pendency of the application, provided that:
(a) (U) the individual does not work unlawfully while the application is pending and did not work unlawfully prior to filing the application; and
(b) (U) the individual did not otherwise fail to maintain his or her status prior to the filing of the application (unless the application is approved at the discretion of USCIS and the failure to maintain status is solely a result of the expiration of the Form I-94), and further provided either:
(i) [...] or
(ii) (U) if the application was denied or the individual departed while the application was still pending, that the application was timely filed and nonfrivolous.

3. Nonimmigrant visa issuance and entry are never guaranteed

4. No

[katzie19]

The same scenario happened with my mother. She applied for an extension, but biometrics didn't work and before the decision was sent, she left for India. Once, she went back, the decision for extension was a denial. Now, I have booked the tickets for her to come here next month. My concern is, what if she is not allowed. So, what additional documents should she bring to prove that she has every intention to go back and she is here only for a short time? Thanks.

[kwatt]

Hikatzie19
Same situation here .Could you please share your mom's experience at CBP when she comes to USA?
Thank you!