mumof4

Am I understanding everyone? HAving an overstay of let's say 4 months on the WVP will mean I probably can't get even a B2 tourist visa in the future? I thought it was just a 3year ban? Has anyone gotten a B visa after a WVP overstay?

Noorah101

Having an overstay of 4 months prohibits you from using the VWP, but you are still eligible for a B2 tourist visa. There is no ban from re-entering the USA. Whether you GET the B2 or not is up to the consular officer, but you aren't banned from getting one.

An overstay of 180 days to a year incurs a 3-year ban from returning to the USA at all.

An overstay of more than a year incurs a 10-year ban from returning to the USA at all.

The big question is...if someone never completes his AOS and receives a green card, does the time spent "pending AOS" count towards an overstay or not.

Rene

scrubbedexpat099

As I undestand it overstays are forgiven following adjustment, not the case here.

Otherwise it would be easy to avoid any ban, just file a spurious adjustment and leave before it is decided.

newXgate

I believe that the issue is whether the AOS case is considered to be 'frivolous' or not. If there is clearly no way an application could be granted (eg an employment based AOS filing without labor condition approved or I-140 approved) then the case is considered to be frivolous and on denial of the petition, the person would be considered to be out of status. On the other hand if the case is potentially approvable on the facts, you are in valid status as soon as the AOS case was filed, even if you were out of status beforehand. As a practical matter this means that the 'clock' counting days out of status is stopped during the AOS application.

What is not clear is what happens if a non-frivolous petition is subsequently denied, it appears it may be at the discretion of USCIS to determine whether to count the time waiting for the decision as time spent out of status.

In the OP's case, assuming the AOS application is non-frivolous, until they withdraw the application they would remain in status. That said, they should consult with an immigration lawyer before proceeding since this is not really a DIY case IMHO.

scrubbedexpat099

Of AoS is withdrawn and never assesed how could it be decided as being frivolous?

Or not.

newXgate

It would be up to the OP to provide proof that the application was not frivolous. For example, if they applied for a visitors visa at the US embassy they could bring copies of the AOS application and all supporting documentation to show the application was serious. The assessment of frivolous or no would be made by the Consular Officer in that case.

Noorah101

In the OP's case, her Adjustment of Status was done inside the USA based on marriage to a USC. They decided to move back to the UK before her AOS was completed, so she never had her AOS interview nor received a green card. She also has said they either intend to (or already did, not sure which) write a letter stating they are abandoning the AOS process.

Rene

newXgate

Fair enough. I was addressing the possibility mentioned in her original post that she might want to return to the US on a visitor's visa, hence the need to 'prove' she was never out of status whilst awaiting the AOS decision.

Noorah101

So are you saying it's up to the consular officer issuing the visitor's visa, to decide whether there was any overstay or not?

newXgate

Yes. If you are applying for a visa and the issue overstay comes up (or anything else for that matter) it is always the CO who makes the final determination. Perhaps they consult with USCIS in cases like this, who knows, but the CO makes the call and of course their word is final.

Noorah101

So if the ConOff decides there is no overstay in the OP's situation, she wouldn't need a visitor visa, she would qualify for using the VWP.

scrubbedexpat099

Checkmate.