ESTAworried

Hi All, I don't think this has been discussed here (not that I can see), please forgive me if it has.

My story is this; Last year I travelled to the US on the VWP (my 13th time in the US, my mother lives there)... before my VWP expired I married a US citizen and togeather we petitioned for a marriage-based green card and work authorisation. Unfortunately, three months later we divorced due to various reasons.

After divorcing, we notified our immigration attorney to withdraw / cancel our greencard petitions which he did and I lef the US 10 days later.

A week ago I received a letter from USCIS saying that because my ex wife withdrew her petition (as my sponsor) for my green card, my application had been 'denied'.

I now want to travel back to the US in June to see my mother and friends for two weeks. My ESTA is still valid until June 2014 but I am worried that my visa 'denial' will cause problems at the border.

Does our withdrawal of petitions really constitue a 'denial' which would preclude me from entering the US on VWP or from obtaining ESTA authorisation in the future? My immigration attorney is going to send me letter explaining that we withdrew the petitions ourselves and that it was not 'denied' due to criminal / fraud.

Should I be ok to travel to the US?

Thank you for any advice you can give!

md95065

If I understand correctly, you entered the US using the VWP and got married.

You stayed in the US and, at some point (when?) applied for adjustment of status based on your marriage to a US citizen.

Three months after getting married you got divorced (again, exactly *when* did this happen), your now ex-wife withdrew the petition and at some point (yet again, exactly when?) you left the US.

This is too complicated to deal with on an internet forum other than to advise you to consult an immigration attorney - the issue isn't just the "denial" of the petition - the issue is when you did certain things, what your status was in the US from the time that you arrived right up to the time that you left and whether or not you can reasonably claim to have complied with all of the terms and conditions of the VWP - if you can't honestly make that claim then you are not eligible to use the VWP again.

Noorah101

From what you've said, you do not have a visa denial. What you applied for was adjustment of status to permanent resident...it was not an application for a visa.

I assume your AOS was filed before your VWP 90 days ran out (last year). However, by the time your AOS was adjudicated (either by withdrawl yourself or by USCIS), you were past your 90 day limit. You need to contact that immigration attorney and find out for sure, in your case, if that constitutes an overstay. If it does (which I think it might), then you can never use the VWP again. Find out for sure, before traveling.

Rene

RICH

Sounds like your application to adjust status was denied, as expected/requested. I would think that is not the same as a visa being denied, and should not affect the future use of VWP, although it may lead to additional questioning. I think you will be fine to visit on VWP.

scrubbedexpat099

Your VWP days are over, you need to apply for a B2 visa.

If you overstayed more that 6 months you also have a 3 year ban which would need a waiver. Sounds like you did not, but even so it is going to be tricky to get a B2.

sir_eccles

This! An overstay is a violation of the VWP rules. Once you have violated the rules you can't use the VWP again.

The adjustment denial may not be a visa denial but may constitute a denial of an immigration benefit.

RICH

Where is everyone seeing an overstay in this case? OP got married/filed for adjustment within vwp 90days and left as soon as the marriage failed.

Noorah101

For me, I'm unclear (and always have been), on whether the time from filing AOS to getting AOS adjudicated (the time beyond the 90 days allowed on the VWP) counts as an overstay in certain situations. I know the OP was allowed to stay in the USA "under color of law" until a decision was made on the AOS....but if the AOS is withdrawn, or if the decision is a denial, that time might be seen as an overstay. My layman's thinking is that only if AOS is approved does that time not count as an overstay. But I could be wrong...the OP should ask the immigration attorney for clarification.

Rene

md95065

... and you saw all of these details (which I already asked about) precisely where in the information that the OP provided?

Duncan Roberts

If the divorce was 3 months after the marriage and he left 10 days after that, it would seem that he was in the country for more than 90 days on the VWP. Just because he filled doesn't mean the overstay doesn't exist. I may be wrong but if the application was successful the overstay is usually forgiven but it's still an overstay.

RICH

Post #1, Paragraphs 2 & 3.

"before my VWP expired I married a US citizen and togeather we petitioned for a marriage-based green card and work authorisation."

"After divorcing, we notified our immigration attorney to withdraw / cancel our greencard petitions which he did and I lef the US 10 days later. "

md95065

The OP's statement indicates that they got married within the 90 days, it is not clear that the petition for AOS was also filed within the 90 days.

The timeline for leaving the US also isn't precise - how long "after divorcing" did they notify the attorney - and the OP left the US "10 days later" than what event - getting divorced, notifying the attorney or what?

Sorry, but there isn't nearly enough information here for it to be even remotely safe to to suggest to the OP that they do not have a problem. A consultation with an immigration attorney is definitely in order.

RICH

OP already has a lawyer. I think he was looking for a common sense perspective.

jeffreyhy

That would be dumb. The law, not common sense, which is not always common nor sensical, prevails.

The fellow should be talking more with his lawyer, who knows both the law and the details of the situation.

Regards, JEff

scrubbedexpat099

????????????????

He was in the US more than 90 days.

VWP entry is 90 days.

Overstay = no more VWP.