Published on Lawyers.com and the Epoch Times on December 22, 2017
Q & A.
Does My Girlfriend Stay Here In States Considered Legal?
Change of status from J-1 to F-1 Visa. J-1 expired Dec. 15 2016, F-1 application was received by USCIS Jan. 02 2017. On October 26, 2017 my girlfriend checked her case status and found out that the application was denied. She was supposed to receive a denial notice but since she didn’t update her address after she moved, document wasn’t received. On November 25, on her case status was stated that documents were returned back by post office to USCIS. She did right away updated her address and requested to resend documents, it said expect response by December 4th. Until now she is still waiting for their response or for the document to be resent.
1. Does her stay here in states considered legal still?
2. If you get denial notice, how many days they allowed you to depart the country?
3. What are probable reasons why her application got denied?
Mr. Lee answers:
If your girlfriend's case was denied, she would not be considered legal since she has no other nonimmigrant legal status in the US. She should do what she is doing at this time, which is to try to obtain a copy of the decision. It is only at that time that she would have an idea as to the reason for the denial and whether she could contest it through a motion to reopen or reconsider. Although there are technically 30 days to file a motion after denial, U.S.C.I.S. would likely entertain a late motion where your girlfriend never received the decision previously and made reasonably diligent efforts to obtain the denial after learning that her application was denied. I do note that persons who have changes of status denied and who have no other legal status can incur a three-year bar upon return if they remain in the US for 180 days or more after the date of the denial. Success on a motion to reopen or reconsider would retroactively make all of the time legal since the time of the denial. A difficulty may be that a decision might not be forthcoming within 180 days on a motion, and your girlfriend may have to make a decision as to whether to stay in the US to continue the motion or leave the country to avoid the three-year bar.
What Do I Do If I Had to Leave Soon?
Printing my I-94 today I noticed that they only gave me 60 days to stay in USA when they normally give me 180. Also when they stamp your passport they provide you with the return date. Mine didn't this time. I'm worried. I have a tourist visa that expires in 2024 and I've been here since July 31st, 2017. Supposedly I had to leave around the end of September. I had a vehicle accident in August. What can I do?
Mr. Lee answers:
The difficulty in your situation is that your overstay appears in large part to have occurred because you did not print out your I-94 copy previously which showed that you had only 60 days to stay in the US. The mitigating circumstance here, however, seems to be that CBP did not put the return date on your entry stamp. If you had a serious vehicle accident in August 2017 in which you suffered significant injury, you might be able to ask for an extension of time on a late basis on form I-539 application to extend or change status. Whether you can convince U.S.C.I.S. of the worthiness of a late extension application with only vehicle damage is questionable. The combination of the two factors may be persuasive, however, although the decision would be up to the adjudicator. Staying in the US 180 days after the expiration of your allowed time brings about a three-year bar upon return. Given the lengthy processing time for an I-539 application, you would likely exceed 180 days while waiting for the decision. You would then have a choice between staying in the US for the decision and hoping for an approval or leaving to avoid the three-year bar. I do note that an overstay in the country automatically invalidates your present visa. For you to return if you leave at present, you would have to obtain a new visa from the American consulate or embassy.