How to Answer the EVUS Overstay Question After Departing During a Pending Extension
The article centers on one mother's experience: she filed an extension application before her I-94 expired, returned to China while the application was still pending, and the application was later denied. On that basis, the article discusses how she should answer the question "Have you ever overstayed?" when updating her EVUS. Citing INA 222(g) and the Department of State's Foreign Affairs Manual, the author states that timely filing a non-frivolous extension application and departing while it is pending does not constitute overstaying; the author leans toward answering "No" and recommends keeping the application receipt, proof of departure, and similar documents.
Updated 2022/12/01: {https://gonglue.us/146140}.
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Today a reader asked: "My mother submitted an extension application as required before her I-94 expired, and returned to China before it was approved. I notified USCIS in the system on time. Later, a fingerprint notice came and then the application was denied; I also notified USCIS. Now my mother needs to apply for a new EVUS (the old one expired), and there is a question: Have you ever stayed in the United States longer than the admission period granted to you by the U.S. government? Should the answer be yes or no?"
After entering the United States on a nonimmigrant visa, the period of authorized stay is generally determined by the I-94 issued by the CBP officer. Remaining in the United States after the I-94 expires constitutes an overstay and causes the visa to become void. However, if an extension application was timely filed before the I-94 expired and USCIS has not yet completed adjudication, the person may remain in the United States after the I-94 expires while awaiting the result; departing during the pendency of the application is not treated as an overstay, and the visa is not cancelled. See the following two articles:
- {https://gonglue.us/14973}
- {https://gonglue.us/60821}
According to INA 222(g): "In the case of an alien who has been admitted on the basis of a nonimmigrant visa and remained in the United States beyond the period of stay authorized by the Attorney General, such visa shall be void beginning after the conclusion of such period of stay." The Department of State's Foreign Affairs Manual states that as long as a non-frivolous extension application was timely filed and the person departed the United States after the I-94 expired but before USCIS adjudication, the situation does not fall under INA 222(g). In other words, this situation does not constitute being beyond the period of authorized stay.
I have not personally used EVUS, so I do not know whether answering "Yes" to the question the reader mentioned—"have you ever stated longer than the admission period"—would still allow the EVUS electronic visa to be updated online. In my view, readers in this situation have not overstayed, and the question may be answered "No." That said, it is advisable to keep the extension application documents (including the receipt and the receipt notice) and evidence of departure before USCIS acted (such as a boarding pass), and to carry them on the next trip to the United States so that, if questioned by CBP, one can prove departure occurred while the extension application was pending.
If any reader or their relatives or friends have personal experience with departing the United States while an extension application was pending and later renewing EVUS, we welcome comments on how they answered this question, whether the renewal went smoothly, and whether they encountered any trouble as a result.
