ESTA after abandoned AOS

[MacUK 983]

Not a situation that applies to me but just something I was curious about after reading a few threads.

Hypothetical situation.

Say someone overstays on their VWP, marries and adjusts.

Things go wrong and they move back to their own country, abandoning the process or their GC if it's got that far.

With the old 'overstay forgiven for spouses of USCs' would that be a blanket forgiveness in all aspects or just where it concerns the AOS?

Such as would they be able to get a future ESTA approved or would they lose their VWP privileges for life like everyone else?

Anyone got an opinion/hard facts?

I'm presuming they'd still have to own up to overstaying.

Like I said, just curiosity.

[Nich-Nick 3,354]

Opinion: The overstay would be forgiven and not hinder the pending AOS. If the AOS fails or is abandoned, then you are left with a plain 'ol overstay and any VWP consequences that occur because of an overstay. Don't know the real answer. Just making that up.

[Cheezees 1,514]

Opinion: The overstay would be forgiven and not hinder the pending AOS. If the AOS fails or is abandoned, then you are left with a plain 'ol overstay and any VWP consequences that occur because of an overstay. Don't know the real answer. Just making that up.

I agree. Otherwise all you would need to do to be "forgiven" of an overstay would be to file an AOS and abandon it the next day.

[newacct 688]

Technically, there is no "forgiving" (people just like to say that for simplification) -- overstay by itself is simply not one of the bars to AOS for immediate relatives so it doesn't matter for the AOS. But the overstay still exists and does not disappear.

[NigeriaorBust 4,087]

The answer to the question "have you ever stayed in the US longer than the admission period granted by the US government" remains unchanged by filing for and receiving AOS ( or abandoning it )

[MacUK 983]

That's what I thought.

There was a thread a while back from a British bloke who'd overstayed, married, adjusted, divorced and wanted to go back to live in the UK as he was homesick.

He was worried about being able to return to the US on vacation.

No one had any definite answers at the time and the question's been niggling at the back of my head since then.

I wonder how they'd figure out the length of unlawful stay for a possible ban then.

From when they overstayed until they started AOS, or from when they overstayed until their greencard was approved.

[newacct 688]

I wonder how they'd figure out the length of unlawful stay for a possible ban then.

From when they overstayed until they started AOS, or from when they overstayed until their greencard was approved.

From when they overstayed until they started AOS. You do not accrue "unlawful presence" while AOS is pending.

[aaron2020 11,651]

From when they overstayed until they started AOS. You do not accrue "unlawful presence" while AOS is pending.

If the AOS is abandoned, then that unlawful presence stay does not apply.

[newacct 688]

If the AOS is abandoned, then that unlawful presence stay does not apply.

It does apply. It applies regardless of whether AOS is approved or denied.

From AFM Chapter 40.9.2(b)(3)(A):

Note that, if the application is properly filed according to the regulatory requirements, the applicant will not accrue unlawful presence, even if it is ultimately determined that the applicant was not eligible for the benefit in the first place. The accrual of unlawful presence is tolled until the application is denied.