Overstaying past authorized stay with timely extension filed.

Hello,
I have relatives who visited the US from India on a visitor's visa. They had no flights to get back to India due to the pandemic. Foreseeing trouble, they timely (before the expiry of I-94 authorized stay) filed the extension of status papers. They ended up staying past their authorized stay and left the US last week. Their applications were never adjudicated on and are, in fact, to this day still pending with the USCIS.

Their visa also had expired during their "overstay" and now find themselves in a dilemma on how to answer this question on the US visa renewal form: "Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official, or otherwise violated the terms of a US visa?---If 'yes', give details".

Now they did overstay, yes, but having timely filed the extension several weeks (8) before the expiry of their authorized stay, are they considered to be unlawfully present? Their application is still pending for over 5 months.

How should they answer this correctly, truthfully, and without jeopardizing their chance of renewing their visa?

Thank you.

EDIT: their overstay was for 4 months.

Quote:

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Originally Posted by nbk1976

Hello,
I have relatives who visited the US from India on a visitor's visa. They had no flights to get back to India due to the pandemic. Foreseeing trouble, they timely (before the expiry of I-94 authorized stay) filed the extension of status papers. They ended up staying past their authorized stay and left the US last week. Their applications were never adjudicated on and are, in fact, to this day still pending with the USCIS.

Their visa also had expired during their "overstay" and now find themselves in a dilemma on how to answer this question on the US visa renewal form: "Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official, or otherwise violated the terms of a US visa?---If 'yes', give details".

Now they did overstay, yes, but having timely filed the extension several weeks (8) before the expiry of their authorized stay, are they considered to be unlawfully present? Their application is still pending for over 5 months.

How should they answer this correctly, truthfully, and without jeopardizing their chance of renewing their visa?

Thank you.

EDIT: their overstay was for 4 months.

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I think Earlier this year congress was discussing and passed a bill that would not consider any visa overstays as overstays while Pandemic emergency was on. You may want to check the last Covid relief bill details - it should have those provisions.

So if those provisions were passed then obviously your relatives did not overstay.

If someone did file for extension before expiration of current status, then they are no longer "overstaying". The fact that visa expired does not seem consequential - visa is an entry document, the I-94 gives you status to stay in the country.

As they have left, I imagine you should withdraw the extension request. Given the unique circumstances this year, I would choose NO of whether they have overstayed.

Thats correct. Once the application to extend status is filed till a certain date, you are not out of status till uscis adjudicates on the extension request, or the date till which the extension is applied for is past. They can confidently say they have never been out of status.

My aunt is staying with us since almost Dec 2019. Her I94 expiry was on June 30, 2020.

We filed I539 for her in early May. Stunningly, it is still pending! Absolutely no action taken whatsoever.

We just filed a second I539 for her and I attached as evidence our previous request and the same expired I94. They generated a receipt, but I do not expect any action whatsoever.

Sending my aunt back home is a non starter. She is somewhat old, and she stays in a protective environment with us. We will not risk sending her back.

If she does come back in the future, we will say *no* for the question about overstaying. We have active I539 applications - the USCIS could reject them in the worst case, and we would be forced to send her back in that event (if we can even find her a flight). However, a pending application guarantees her stay here is legal.