UPDATE ON EXTENDING B2 VISA (I539)

[Hfx_Cdn]

    Tom, as has been covered in various previous strings, it is a very convoluted set of laws and interpretations.  There are no formal visa requirements for tourist between Canada and the US, it is deemed an informal one by the respective country's border guard upon entry.
    There are 2 areas of concern for Canadians entering the US and they have differing rules.  Canadians tourists are allowed 6 months entry in any given year, with the year defined as a rolling 12 month period.  So when we cross say on December 1st, we must leave by June 1st, unless we leave the US for 30 consecutive days.  Or as some do, they cross stay 2 months, leave for a month, cross again etc, but still need to keep track of their number of days to ensure the maximum 6 months with the 12 month rolling year is not exceeded.  There never used to be any tracking, but Homeland Security now requires Canadian border patrol to electronically advise US border patrol when we return.
    The second set of rules that need to be followed are the US IRS requirement that all "residents" must submit an income tax return on world wide income.  Their definition is 184 days calculated as 100% of the current year, 33% of the preceding year, and 17% of the second preceding year, however they will allow exemptions of filing upon the filing a Form 8840, (Closer Connection Exception Statement for Aliens), again there are several strings dealing with its submissions. 
    Forum Staff member Stu has done a good job explaining both of these requirements, some are in the Library, and others are within strings.
    A common misconception is that Canadian health ceases after 6 months out of province.  While that was previously true, many provinces have extended that deadline to 7 months, and one has gone to 8 months.  Plus many allow extensions upon written request.
    Sorry for the long answer to a short question, but it is a complicated issue.

Ed

 

[Tom]

Thanks for the reminders Ed, and one or two 'new to me' items, e.g. the 6 months to 7 or 8 on the CDN side. I must admit to not having kept up with the rules for Canadians.

... US IRS requirement that all "residents" must submit an income tax return on world wide income.

Aye, I remember that one all too painfully. We paid income tax in 2 countries for some time. It took a lot of work to resolve and, when we got the UK Inland Revenue sorted out, we got into a protracted dialog with the (US) IRS; They eventually admitted they were wrong and dropped all actions, but only after notifying us they were about to seize (our) property.

Back in the day, there was something called a "sailing permit", which required the IRS to verify you'd paid all your owed taxes before you could legally leave the US. I don't recall getting tangled in one of those situations.

 

[UK-RV]

Things have certainly changed since our Tour.

Back then we did as little as 2 weeks in Canada before crossing back in to the US - we must have "border hopped" probably 7 or 8 times in all.

We had the B2 for our arrival in Florida in the January, had it re-stamped for a further 6 months on one of the crossings and then sent off the extension request for an extra month we needed to sort shipping of the RV.

We were only advised once where the border officer suggested we couldn't cross the border again so quickly - but it had no effect when we next did (there didnt seem to be any record kept of the conversation).

We were once sat in the waiting room at the main border crossing nr Niagara Falls for 4 hours wondering if we were facing any trouble - but it just turned out they had put our paperwork on a side desk and forgotten about us.

The RV was still in Canada but we took the car across the border to see the US side (by which time we had no time left for it and immediately turned round and crossed back into Canada again.

 

[Tom]

Aye Paul, and thanks for those comments/recollections. I expect ongoing changes in the rules, the process, and enforcement, especially given the administration's increased sensitivity to folks coming in (legally) and staying here; There's a very real concern that some will end up living off the state.

 

[Tom]

FWIW one of the differences in process I've observed since we first had US visas stamped in our UK passports (while still living in the UK) was that we didn't need to visit a US embassy or consulate; It was all done by mail, possibly because they were B1/B2 visas (B1 = business travellers, B2 = tourist).

OTOH the current ESTA process can all be done online. ESTA is the visas waiver program for short-term (3 months max) visas, with no extensions allowed. A couple of our (my) UK visitors reported that the ESTA process was relatively simple to complete. Other visitors (of ours) had to visit the US embassy for their B2. I wonder if ESTA will eventually be discontinued, given the current/new immigration climate.

 

[TonyL]

When we applied for our visas last year, you completed the forms and submitted online. After about 48 hours we could then book an appointment at the US Embassy in London for an interview. The whole process from form submission to receiving our passports with the Visas only took about 2 weeks. We also had Visa waivers due to having been in Seattle during 2018. We didn't know if we still needed them so renewed them before we flew. If you have a visa, we were told by immigration that you do not need a visa waiver, but they only cost about 14$.

 

[Tom]

[quote author=TonyL]... we were told by immigration that you do not need a visa waiver...[/quote]
That's correct. I'd be concerned about the two applications (B2 and ESTA) running interference with each other in the US online system.

 

[TonyL]

Sorry that I have not updated this thread, but as others have recently enquired about UK residents trav reelling in the USA I thought it might be worth noting what we know so far.
After submitting our request to extend our Visas, we received a letter about 3 weeks later advising that the application had been received. It clearly stated that at that time, no change in status was to be implied. Around the 1st week in July, 2 weeks before our I94 expired, we received an appointment for a biometric interview for the 30th of July. I contacted the USCIS and said that the interview was after we were supposed to leave the country. They confirmed that technically we would be overstayers and could be deported, but as we had received notification of receipt of extension request, if we had any problems, then the letter should be accepted as evidence that we were seeking extension. They also confirmed that if extension was not granted, we would be listed as overstay and our current 10 year Visa would be forfeited. We would then need to re-apply for a new Visa from the UK, stating why we overstayed. The date of overstay is from the date of departure on your I94.
If extension is granted, then we would not be classified as overstayers and our current Visas would be still valid.
As of today (4th October) we still have not heard anything more.
As a footnote to others considering extension, I would say that if it was not for Covid, we would not want to risk our Visas and would have left within the 6 months, had we known when we applied for the extension about the time it takes.
Regards
TonyL

 

[Tom]

Thanks for posting that Tony. It all sounds a bit scary to me, and not how I understood the I-539 process would work. Things they are a changing.

 

[TonyL]

The worst part is that we cannot plan anything.
Whilst we have return flights booked for November that are still showing as scheduled, we cannot book a connection to the departure airport because we may need to book flights home sooner if the extension request is not granted. Still, as they say, nothing in life worth having is easy?

 

[Ex-Calif]

The worst part is that we cannot plan anything.
Whilst we have return flights booked for November that are still showing as scheduled, we cannot book a connection to the departure airport because we may need to book flights home sooner if the extension request is not granted. Still, as they say, nothing in life worth having is easy?

If I read your prior correctly you are already overstaying as of mid-July?  Did you complete the appointment on 30th July?

At this point if I am reading it right you may as well ride it out till your original planned departure date. Continue to work the extension request, with the attendant risk of deportation (low probability IMO) and worry about a future visa later when you are back in the UK. I think you "reason" for overstaying (covid confusion) will be accepted as valid as you have attempted to do everything correctly.

So sorry you are stuck in this. My wife (non-us citizen) went to Colombia to take care of her mom on March 6th. She has been unable to come home due to Colombia's border lock down. This stuff sucks for so many people.

 

[Tom]

My wife (non-us citizen) went to Colombia to take care of her mom on March 6th. She has been unable to come home due to Colombia's border lock down.

So sorry to hear that Marvin.

 

[Tom]

Tony,

Re-reading your message and, after giving it some thought in the context of other I-539 and similar reports, I'm of the opinion that you have nothing to worry about. This seems like one of those cases where no news is good news.

All the stuff they told you about "technically overstayers" and forfeiting the B1/B2 visa is boilerplate bureaucracy-speak. The key here is demonstrated intent, and the letter clearly shows that your intent was to follow the rules.

One caveat - I'm not an immigration lawyer, just someone who's been tangled in various US bureaucracies, both personally and professionally, over many years.
Second caveat - I've witnessed (more than once) someone in bureaucracy having a bad day, potentially being a roadblock and/or derailing the process.

 

[TonyL]

Hi Marvin, yes, we kept the appointment and on the USCIS check my status website it shows that our case was updated to show biometric interview was completed.
Tom, I kind of know that their warnings may be hard ball, but as someone just trying to do everything right in another country, it does make it a little concerning. As far as we are aware, we have no criminal record or committed any violations here, so we think we should be ok, but current issues with immigration, we take nothing for granted.
What I find strange is the time it takes, as a somewhat stranger first applying for a Visa it took only two weeks from form submission to being told the Visas were granted, but it could take five months to approve an extension.
It's a pity that I could not find out before we left the UK that entering Canada for a few months does not reset your I94, then we would have planned accordingly. Lesson learned.

 

[Tom]

[quote author=TonyL]... as someone just trying to do everything right in another country, it does make it a little concerning.[/quote]

I fully understand that, and have been there. Over the years of working with various US agencies, including professionally, the modus operandi becomes clearer with time. Definitely unsettling when you first experience it. 

What I find strange is the time it takes, as a somewhat stranger first applying for a Visa it took only two weeks from form submission to being told the Visas were granted, but it could take five months to approve an extension.

I'm not surprised, and I believe I've read of cases where the I-539 applicant didn't receive a response, at least not before they'd returned home.

It's a pity that I could not find out before we left the UK that entering Canada for a few months does not reset your I94, then we would have planned accordingly.

I believe I've mentioned that in various topics here (maybe not ones you were involved with), and some folks have challenged my statement. I'll see if there's somewhere I need to make that clear to potential visitors.

 

[jackiemac]

Tony, is it just Canada or did you say same applies even if you go to Mexico?  I thought during a discussion we had you had to return to home country?

 

[TonyL]

Jackie, what it says is you must leave North America, it does not stipulate you must return to your own country. However, by returning home might be a demonstration that you do have one, and are not an itinerant.

 

[jackiemac]

Jackie, what it says is you must leave North America, it does not stipulate you must return to your own country. However, by returning home might be a demonstration that you do have one, and are not an itinerant.

Is Mexico still  classed as North America?  Probably is my thought.

 

[Tom]

Tony, (our) true story ...

We were at an immigration interview, 18 months into the process. One of the i's wasn't dotted correctly, so the INS agent slammed our file down on the desk and said "start the process all over from the beginning when you have all the right paperwork!".

We had an immigration lawyer with us, but he went into full panic mode and went to get his senior partner from another interview. The "issue" was that I had the short form of daughter's UK birth certificate, which doesn't prove parent/child relationship.

I rummaged around and found a letter from the (California) school referring to Chris as Debbie's mother. The senior partner put his arm around the INS agent's shoulder and said "Bill (or whatever his name was), can we put this letter in the file temporarily, and we'll get you the long form birth certificate by Monday?"

That did the trick, the agent's scowl turned to a smile, and all was well. It's all down to personalities and relationships.

 

[TonyL]

If I could meet someone in person, I might stand a chance of charming them ( bet Jackie disagrees) but it is either telephone or internet. When we had the biometric interview I had hoped to glean a little more info, all they could say was that the application now goes to the FBI. Not sure if charm will work there?