red_onion

I’ve applied for permanent residency for my daughter who’s 12 through AOS while on ESTA. I-30 is approved but the decision to grant her LPR could take up-to 13 months according to USCIS.
Family emergency means that she’ll will have to go back to the UK for a while.
what are the ramifications of abandoning the application? Can she still visit on ESTA or strictly visa now? Will visa be granted given the fact that we applied AOS while on ESTA?

Thank you

karenkaren1

I never knew it was possible to do AOS whilst in ESTA status..... can she get advance parole?

christmasoompa

How long has she been in the US, has she overstayed her 90 days?

LT1

It's only possible for immediate relatives (Spouse / Unmarried children under the age of 21 / Parents, if the citizen is under 21) of a US citizen.

LT1

Op, your best bet is to apply for emergency Advanced Parole. See here: https://www.uscis.gov/greencard/gree...mergencytravel

red_onion

She has been in the US for 5 months now. No she didn't overstay. We applied just before the 90 days ESTA expiry.

red_onion

Does emergency Advanced Parole will help for multiple entry while LPR application is pending or is it just a one time entry permit?

christmasoompa

I think you need to consult with a lawyer. The link given above specifically says departure from the US may trigger inadmissibility if she's accrued unlawful presence, even with AP - I don't know if filing excuses her overstaying the VWP, but there's a risk here and I'd personally be taking proper legal advise.

Rete

Yes, a consultation is in order. However, can you advise why you didn't file for AOS at the same time you filed the I-130 for your daughter. If she was inside of the US and you filed the I-130 for with the full intent that she was going to remain in the US to adjust status, while you were taking a big chance on doing so, you should have filed the I-485 and accommodating forms along with the I-130. They would have been adjudicated together.

Since you haven't filed the I-485 for her, she is not abandoning her green card application because one has not been filed. All that has been filed as per your post is the petition for an Immediate Relative Visa which if she returns to her own country she can finish there. The issue is that yes, she has been in overstay since her 90 day VWP expired.

An attorney can help her with filing for a waiver of inadmissibility when her visa is denied due to overstay.

You disregarded rules and regulations so far why are you willing to now abandon the still ongoing process for an immediate relative visa and adjustment of status?

Pulaski

Technically you are correct because she applied before the end of the ESTA/VWP 90 days, however if she abandons her PR application then that will sink the AOS raft that she jumped onto from her ESTA status. In other words, abandoning her AOS/PR application will retrospectively put her into an "overstayed" status. .... Hence the advice to consult urgently with an experienced immigration attorney.

S Folinsky

I agree that legal consultation might be in order. If nothing else, further inquiry by a trained professional might be useful.

I find it curious that OP states that the young person has been in the US five months but less than 90 days.

The main case on advanced parole and adjustment is Arrabally. Yes, the opinion is confusing. It notes the disagreement by the administrative authorities. Despite the decision favorable to non-citizens (which is wonderful), I personally agree with the dissent. I can easily see Arrabally go by the wayside.

Pulaski

Read again - the AOS was filed before the 90 days was up, but it appears that was a couple of months ago.

newacct

She did not accrue any "unlawful presence" for the purposes of the 3-year/10-year unlawful presence bans, for multiple reasons:

1. people never accrue unlawful presence for the 3-year/10-year unlawful presence bans while under 18, and
2. people do not accrue unlawful presence while an Adjustment of Status application (I-485) is pending, even if it is ultimately denied or abandoned. So even if she were an adult, she would not have accrued unlawful presence

newacct

The original post says she applied for AOS.

There is no inadmissibility to waive. She did not accrue any "unlawful presence" for the purposes of the 3-year/10-year unlawful presence bans, for multiple reasons:

1. people never accrue unlawful presence for the 3-year/10-year unlawful presence bans while under 18, and
2. people do not accrue unlawful presence while an Adjustment of Status application (I-485) is pending, even if it is ultimately denied or abandoned. So even if she were an adult, she would not have accrued unlawful presence

newacct

I believe Emergency Advance Parole is usually single use for 30 days.

Did she apply for regular Advance Parole with her Adjustment of Status application? (I-765 for EAD and I-131 for Advance Parole is free for I-485 applicants.)