cbUK

Hello,

My first post on here I found the link to this site on UK Yankee forum which me and my wife used a fair bit when emmigrating to England. Was looking for some advice. A bit of background Im a UKC and my wife is a USC, she has perm. residency in the UK and we're very settled here. However, my wife hasn't been back to the states since we left in 2008, we've just had our first child and we both wanted to go for a holiday this summer.

As the thread title suggests, i have history with USCIS. Before we were married i entered the states under visa waiver, got married and then began the adjustment of status process. My application was refused on a technicality... my wife, although earning well above the poverty cut off couldn't give 3 complete years tax returns tax returns because 1 of them years she was living in Australia (i think reading between the lines they refused me for whatever they could because i was in a very grey immigration place having entered on VWP and then tried to change my status). Anywho, after my refusal, i re-applied to maintain my immigration status as an alien awaiting the outcome of an application...although by this time i'd lost faith in my lawyer so we also put in my wife's visa applicaiton to move to the UK. After the UK one came through i left the states, emailed my lawyer, told him we'd left and that i wanted to withdraw my adjustment of status application. He contacted USCIS who sent a letter back confirming that my application was withdrawn (on leaving i think my application was still live because i'd been granted my work and travel papers and shortly after arriving in the UK received my application interview request)

My question is, now that i have been refused a settlement visa, do i qualify for VWP or when i apply using the ESTA thing am i just going to be refused? If i dont qualify, is it possible for me to even holiday in the states anymore? After i left my lawyer advised me that i'd still qualify for VWP but as i said above, i totally lost faith in him.

Many thanks in advance for any help
CB

Noorah101

Did you overstay your 90-day limit on the VWP on this trip? After how many days in the USA did you file your AOS package?

There's no such thing as a settlement visa for the USA. From your post above, it doesn't sound like you were refused any kind of visa. It sounds like you withdrew an AOS application. Can you please clarify?

It depends on whether you ever overstayed previously on the VWP. You might want to have a consultation with a different lawyer to see if your time waiting for AOS adjudication counts as an overstay, even if you filed AOS within your first 90 days in the USA. (If you filed AOS after your first 90 days in the USA, then you absolutely cannot use the VWP ever again, and you'd need to apply for a visitor's visa.)

Rene

cbUK

Hi,

Thanks for the reply.

Sorry, im confusing UK and US immigration terms.

To answer your q's ...I never overstayed after entry under the VWP, i was careful to make sure i didnt do that. I think i put in my first AOS application about a 40 days after entering the US.

I applied twice for adjustment of status, both times i also applied for my travel and work permits while my application was being considered. The first application was submitted in October 2007. I was given a travel document to leave the US in Nov 2007 after a family member died. I re-entered Dec 2007 and in around March 2008 i received a letter stating that my adjustment of status had been refused because insufficient tax returns had been submitted by my sponsor (wife). My lawyer prepared a second AOS application and we submitted that a few weeks after my refusal letter, this one was co-sponsored by the sister in law. At the same time, i prepared my wife's UK settlment visa which was granted in 6 days ( the difference between UK and US immigration is phenominal)... In June 2008 i left the US, contacted my lawyer who in turn contacted USCIS confirming that i wanted to withdraw my second AOS application.

Hope that makes sense

Noorah101

Some of it does, some of it doesn't, but I'm just a layman.

It's still unknown whether you have an overstay or not. It's unknown to me (and other laymen) whether your time waiting for the AOS adjudications counts as an overstay or not.

Also, having been paroled in after your trip abroad might make a difference.

I know you don't have good experience with an attorney, but in my opinion, you DO need one. You have an immigration past, and it's not 100% clear to me that you can use the VWP for sure. Consult with an immigration attorney.

Rene

cbUK

Its an interesting point, and not one that i had considered. At the time my lawyer said that once you put in an AOS application, you are no longer on VWP and that you're an alien awaiting the outcome of an AOS (he used a special term for it but i cant remember what it was). That said, he didnt spot that tax return thing which got my first application refused.

As you say, best that i speak with an Immigration attorney in the UK. Thanks for the advice.

scrubbedexpat099

It appears you might have accumulated a 3 year ban but not a 10 year ban.

So the ban if it applies would be up anyway this year.

You are going to need to apply for a B2 Visa.