Visiting on an ESTA after 5 month overstay

[grapenoodle 25]

Hi all, hope this is the right place to post this one.

 

I got married while I was on an ESTA last year (I didn't know my husband before entering) and decided to stay in the US to complete Adjustment of Status. However, I found out I was pregnant in March so made the decision to come back to the UK for natal care. I overstayed just over 5 months so no 3 year ban. My husband joined me here on a visitor visa in July and our son was born November. His time is up in a few weeks so he's going to head back to the US to see his family and submit our I-130 petition for consular processing. Then we're going to meet in Asia and travel for a few months until I get my interview date.

 

Here's the thing. His family are desperate to meet our son but I wonder if I would get some sort of separation anxiety from being away from him as he's only 2 months old. How likely do we think it is that if we both have an exit ticket I will be allowed to reenter on an ESTA just to visit? I know my overstay will show up for the immigration officer and it will be at his discretion. I had honestly ruled out visiting until my GC is processed but thought I would see if anyone has any experience with this? I know it won't look good with my history and also entering with my spouse and son, but could it be possible?

 

Thanks for any insight!

Edited December 24, 2019 by grapenoodle

[Boiler 45,511]

That is easy, your VWP days are over, you need a B if you wish to visit.

 

Presumably your son has a US Passport?

[grapenoodle 25]

7 minutes ago, Boiler said:

That is easy, your VWP days are over, you need a B if you wish to visit.

 

Presumably your son has a US Passport?

Ah, would I even be approved for a B? Presumably it would take a few months?

 

My son is eligible for a US passport but we haven't applied for it yet. He will be entering on his UK one.

[Boiler 45,511]

A B seems somewhat unlikely.

 

Your son would need to enter on his US Passport. A US requirement.

[grapenoodle 25]

5 minutes ago, Boiler said:

A B seems somewhat unlikely.

 

Your son would need to enter on his US Passport. A US requirement.

Oh, I had no idea about this. If we can't get that in time, that will shut this whole thing down. Never mind me coming! Will look into getting this over here; thanks for the heads up.

[Boiler 45,511]

Most people start by filing a CRBA at the Embassy.

[grapenoodle 25]

11 minutes ago, Boiler said:

Most people start by filing a CRBA at the Embassy.

Thank you, just booked an appointment. I think I will go ahead and apply for a B2 at the same time. Not a big deal if I get denied but worth a try. Thanks again for your help!

[Georgia16 2,858]

They could also come to the UK or meet up with you guys in Canada (if you can go there)

that way you don’t have to send a 2 month old to another country without you. 

[ineedadisplayname 497]

1 hour ago, grapenoodle said:

wonder if I would get some sort of separation anxiety from being away from him as he's only 2 months old.

But an Asian trip for months is fine? Or are you planning taking the baby with you? That will be an interesting trip....

 

As others said your ESTA is gone at the moment you overstayed. Based on your history you have more ties to the US  (husband and an American child) than to the UK and you also tried to adjust status while on ESTA which is not illegal, but in the eyes of the CO might be a huge red flag that you are not going to return. You can try the visitor visa (B) and see how it goes...

Edited December 24, 2019 by ineedadisplayname

[grapenoodle 25]

1 hour ago, Georgia16 said:

They could also come to the UK or meet up with you guys in Canada (if you can go there)

that way you don’t have to send a 2 month old to another country without you. 

The UK is out as my husband has to leave and it’s not really practical for them to travel as his grandma is so unwell anyway. I have considered Canada!

[grapenoodle 25]

48 minutes ago, ineedadisplayname said:

But an Asian trip for months is fine? Or are you planning taking the baby with you? That will be an interesting trip....

 

As others said your ESTA is gone at the moment you overstayed. Based on your history you have more ties to the US  (husband and an American child) than to the UK and you also tried to adjust status while on ESTA which is not illegal, but in the eyes of the CO might be a huge red flag that you are not going to return. You can try the visitor visa (B) and see how it goes...

Lol, the baby is coming of course! I lived in a few Asian countries before so I’m pretty confident and have lots of contacts. 
 

Thank you for your input, definitely ruling out the ESTA. I’m just wondering if the fact I applied for a B2 will have any effect on my spousal application? I suppose they contradict each other? I DO plan on immigrating, just not on the B2. Not sure if that will fly.

Edited December 24, 2019 by grapenoodle

[ineedadisplayname 497]

3 minutes ago, grapenoodle said:

Lol, the baby is coming of course! I lived in a few Asian countries before so I’m pretty confident and have lots of contacts. 
 

Thank you for your input, definitely ruling out the ESTA. I’m just wondering if the fact I applied for a B2 will have any effect on my spousal application? I suppose they contradict each other? I DO plan on immigrating, just not on the B2. Not sure if that will fly.

No. Approved or denied B2 has no effect on it, just make sure you filled out all the forms correctly where it asks about previous visas..

[SalishSea 17,829]

2 hours ago, grapenoodle said:

I DO plan on immigrating, just not on the B2. Not sure if that will fly.

But why should it fly?  You attempted to adjust on an ESTA, why would this be any different?

[grapenoodle 25]

3 hours ago, Jorgedig said:

But why should it fly?  You attempted to adjust on an ESTA, why would this be any different?

Not saying it should. No attempt was made on the ESTA, it was only intent. Just wondering if the fact I plan on going for a GC means the B2 will be an automatic no?

Edited December 24, 2019 by grapenoodle

[Dashinka 24,497]

Seems like you need to do the CRBA first, not sure what is needed from the husband/USC to do that, then look at a potential B2 which is likely to be denied due to your past history and close ties to the US.  Just wondering why your husband did not submit the I130 as soon as you decided to go back to the UK for the pregnancy/birth as you would have been nine or so months closer to your CR1.

 

Good Luck!