HELP! LEFT U.S. BEFORE FILING ADJUSTMENT OF STATUS ON FAMILY EMERGENCY, CAN I COME BACK?

[Chapters 1]

I don't have a tourist visa, I would be using VWP. I am a UK national who was in the US for 14 years with O1-B.

[Boiler 44,943]

And you were never out of status.

PS UK Nationals are not eligible for the VWP, you have to be a Citizen.

[JFH 12,189]

5 minutes ago, Chapters said:

That is good to know.  So at immigration they would see that I-130 is in process and I would show proof of intent to return to UK while pending.  And fingers crossed that would work for them.

If you're using the VWP you MUST have a return ticket. You won't even be able to board the plane without it. 

 

I visited twice during the I-130 process and I was asked the usual questions and admitted. One occasion the officer was a pain - he kept trying to make me say that my intention was to stay. He wanted to know where I worked and the telephone number of my boss, wanted to know how much money I had. And he kept saying "tell the truth, your husband is going to file the paperwork for you to adjust status and you won't be going home" and I repeatedly said "no, that's not the case. I'm leaving next Tuesday".  When I flew back to the U.K. I really wanted to find him at the airport and say "see! Here I am, leaving, exactly as I said I would". 

[Chapters 1]

Hi Boiler,

I'm unclear as to whether I was out of status - I was granted the O1-B for three years from 2015 to the end of March 2018. However I did not get the visa stamped into my passport. 

[Boiler 44,943]

You need to find that out if you want to use the VWP.

[Chapters 1]

I've tried googling around to research whether a person falls out of status if they do not get their approved visa stamped, but am not having the best luck. Does anyone know who I should call to find out?

[DrEllaNJ 288]

do you have other paperwork that prove your continued O-1 status? Do you have an old passport with an O-visa, perhaps? I know my student/researcher visas had much shorter expiration dates than my underlying paperwork, and it was the paperwork that determined whether I was out-of-status, not the actual visa stamp.

 

If your O-visa was expiring in, say, May, I'd say go get your passport stamped with the O-visa and then file AOS once you're in the US  Note: O-visas are dual intent so in my understanding, this would NOT be fraud.

Are you still eligible for renewing your O-visa? You could try doing that, it may be a quicker way to get back to the US than CR-1. You may want to consult an actual lawyer though to see if that's feasible - I'm just basing what I say on perfunctory Google searches  

[Mollie09 1,543]

29 minutes ago, Chapters said:

I've tried googling around to research whether a person falls out of status if they do not get their approved visa stamped, but am not having the best luck. Does anyone know who I should call to find out?

Not having a stamp does not mean you were out of status, it means you would have needed a stamp to re-enter the country.

If you had a 797 notice of approval with the dates and fulfilled all the other requirements (like staying employed) you were in status.

[mindthegap 2,578]

If your O visa is still valid then enter on that as normal, and adjust. O visas are considered dual intent and this is permitted.

It is also ok to use a valid visa in an expired passport, when presented in conjunction with a new valid passport. 

 

 

If it isn't valid, then renew the O visa.

Edited February 28, 2018 by mindthegap

[Boiler 44,943]

Sounds like he did an in country extension and did not renew his visa.

[Mollie09 1,543]

28 minutes ago, Boiler said:

Sounds like he did an in country extension and did not renew his visa.

In that case, he needs a new visa stamp and can re-enter with the dual intent O-1.

[danielp60 10]

1 hour ago, Chapters said:

I've tried googling around to research whether a person falls out of status if they do not get their approved visa stamped, but am not having the best luck. Does anyone know who I should call to find out?

Like @Mollie09 says, not having it stamped on your passport does not have anything to do with it being valid or not. The only reason you need it stamped is to be able to come back into the country. I went through 3 different visas (and various renewals of those) while living here for over a decade without leaving the country, so I never got them stamped, and was never out of status. So it sounds like you have always been in status, nothing to worry about on that side.

[Boiler 44,943]

8 minutes ago, danielp60 said:

Like @Mollie09 says, not having it stamped on your passport does not have anything to do with it being valid or not. The only reason you need it stamped is to be able to come back into the country. I went through 3 different visas (and various renewals of those) while living here for over a decade without leaving the country, so I never got them stamped, and was never out of status. So it sounds like you have always been in status, nothing to worry about on that side.

You can not get a Visa in country by definition, you may have changed or extended your status.

[danielp60 10]

You are correct, technically not a visa... But yes, extensions and changes of status are valid even if never stamped.

 

15 minutes ago, Boiler said:

You can not get a Visa in country by definition, you may have changed or extended your status.

 

[Coco8 1,042]

12 hours ago, Chapters said:

Hi Boiler,

I'm unclear as to whether I was out of status - I was granted the O1-B for three years from 2015 to the end of March 2018. However I did not get the visa stamped into my passport. 

If you are still using the O1-B and your petition is valid -- so you are working and you intent to go back to work -- , then you can technically go to your consulate (home country) and ask them to stamp the visa. You'd have to go through interview and you'd have to put your husband on the forms, which would not be viewed well, particularly because you said your petition expires on March, which is basically now. You'd probably not do well in the consulate interview and you don't want that since you'd be going for a spousal visa later.

 

Importantly, if your only intention for going back is to adjust status, then it would be fraud to use the O1-B as an excuse to get back to adjust. 

 

 

 

 

 

Edited March 1, 2018 by Coco8