obtained a K1, divorced and moved back - now B2

[geowrian 22,337]

10 minutes ago, SusieQQQ said:

As above, however, the period during adjustment pending still becomes a (retroactive) overstay (out of status) after the case is withdrawn. It is not retroactively unlawful presence but it is still retroactively overstay.

Correct. It means you were out of status but you did not accrue unlawful presence for the applicability of the 3/10 year bar.

I wouldn't exactly say "retroactive" as they had no status while AOS was filed anyway.

[African Zealot 1,455]

My advice is to apply for a visa, although that might also just be a marginally better idea than them ESTA. In both cases, ultimately the judge/jury/executioner will be the CBP Officer you meet at the airport despite being approved for ESTA or visa.

 

I’d still say apply for a visa and be well prepared, don’t take it for granted because your profile doesn’t fit the average European traveler. Be ready to articulate convincingly why overstaying in the USA won’t make sense in your current situation and why it was necessary to do so at the time to see through your divorce.

 

The fact that you returned to your home country is a positive. The fact that you overstayed is a negative. Ultimately it depends which one the consular officer views as carrying more weight.

 

Did you try to change status to B1/B2 while seeing through your divorce to avoid unauthorized stay after K1 expired? Even an attempt at doing so (even if denied) would have cast you in a more favorable light.

 

Good luck either way, you were going through a difficult time and I can understand how maintaining status wasn’t at the top of your mind during that period.

[SusieQQQ 11,586]

10 hours ago, geowrian said:

Correct. It means you were out of status but you did not accrue unlawful presence for the applicability of the 3/10 year bar.

I wouldn't exactly say "retroactive" as they had no status while AOS was filed anyway.

My understanding is the withdrawal (or denial if it happened) means that the authorized stay period reverts to the original i94 expiry (or whatever the K1 equivalent is) rather than validating the adjustment pending period through an approval. So if it’s approved there is no problem, if it’s not (whether withdrawal or denial) the applicant has to report an overstay on their next visa application in the appropriate question. This is even if there no unlawful presence accrued at all. If there was, the period of adjustment pending needs to be added into the overstay calculation, it is not just the periods of unlawful presence that need to be reported. That was what I meant by “retroactive overstay”, I explained it clumsily. I think I explained it clumsily again lol but maybe more clear about what I meant to convey.

Edited February 24, 2020 by SusieQQQ

[Claudette 0]

11 hours ago, geowrian said:

Correct. It means you were out of status but you did not accrue unlawful presence for the applicability of the 3/10 year bar.

I wouldn't exactly say "retroactive" as they had no status while AOS was filed anyway.

So in my case the 3/10 year ban would not apply to me? It’s a little hard to understand. So I overstayed but it wasn’t unlawful so the ban would not apply?

[Claudette 0]

5 hours ago, Ray.Bonaquist said:

My advice is to apply for a visa, although that might also just be a marginally better idea than them ESTA. In both cases, ultimately the judge/jury/executioner will be the CBP Officer you meet at the airport despite being approved for ESTA or visa.

 

I’d still say apply for a visa and be well prepared, don’t take it for granted because your profile doesn’t fit the average European traveler. Be ready to articulate convincingly why overstaying in the USA won’t make sense in your current situation and why it was necessary to do so at the time to see through your divorce.

 

The fact that you returned to your home country is a positive. The fact that you overstayed is a negative. Ultimately it depends which one the consular officer views as carrying more weight.

 

Did you try to change status to B1/B2 while seeing through your divorce to avoid unauthorized stay after K1 expired? Even an attempt at doing so (even if denied) would have cast you in a more favorable light.

 

Good luck either way, you were going through a difficult time and I can understand how maintaining status wasn’t at the top of your mind during that period.

Thank you! It was, I stayed because we were filing VAWA but I decided to move back anyway.

[Claudette 0]

20 hours ago, SusieQQQ said:

So you never applied to adjust, but stayed beyond the 90 days allowed on K1? That means you will need to answer “yes” to the question of have you overstayer, plus you have demonstrated immigrant intent before. So it’s not a slam dunk B visa, that’s for sure. Exactly how hard depends on a number of factors. What are your current ties to your home country other than the job? 

 

 

I applied to adjust, but the case was withdrawn. Yes I can see that I overstayed, I have a good job working for the government and my family lives here (brothers and sisters and parents). Even my degree is very specific tied to my country

[SusieQQQ 11,586]

11 minutes ago, Claudette said:

So in my case the 3/10 year ban would not apply to me? It’s a little hard to understand. So I overstayed but it wasn’t unlawful so the ban would not apply?

It sounds to me like part of the overstay was unlawful and part wasn’t, however, if the total was less than 180 days you don’t have a ban. That does not mean you will automatically get a visa, though. You will have to answer yes to the question about any previous overstays as well as if anyone filed a petition for you/and you did demonstrate immigrant intent, so you have two factors weighing against you. It’s not a certain denial given the circumstances of your previous stay - but it’s far from a certain approval either.

[SusieQQQ 11,586]

11 minutes ago, Claudette said:

I applied to adjust, but the case was withdrawn. Yes I can see that I overstayed, I have a good job working for the government and my family lives here (brothers and sisters and parents). Even my degree is very specific tied to my country

Yet, job aside which presumably you did not have then, none of those factors stopped you moving to the US before. I am not being argumentative for the sake of it - I am trying to demonstrate how a consular officer might view it. Remember that US immigration law presumes immigrant intent on the part of all visa/entry seekers and the onus is on the applicant to show otherwise.

[Claudette 0]

3 minutes ago, SusieQQQ said:

It sounds to me like part of the overstay was unlawful and part wasn’t, however, if the total was less than 180 days you don’t have a ban. That does not mean you will automatically get a visa, though. You will have to answer yes to the question about any previous overstays as well as if anyone filed a petition for you/and you did demonstrate immigrant intent, so you have two factors weighing against you. It’s not a certain denial given the circumstances of your previous stay - but it’s far from a certain approval either.

The total amount together is 8 months, unlawful would be 150 days (5 months)..

1 minute ago, SusieQQQ said:

Yet, job aside which presumably you did not have then, none of those factors stopped you moving to the US before. I am not being argumentative for the sake of it - I am trying to demonstrate how a consular officer might view it. Remember that US immigration law presumes immigrant intent on the part of all visa/entry seekers and the onus is on the applicant to show otherwise.

I understand, thank you for the help 

[SusieQQQ 11,586]

Did you work without authorization in any of that time?

[Claudette 0]

Just now, SusieQQQ said:

Did you work without authorization in any of that time?

No, never worked in the US

[Boiler 45,520]

Di you actually file VAWA?

[Claudette 0]

Just now, Boiler said:

Di you actually file VAWA?

No, my lawyer was ready to file it but I moved back because of personal reasons with my family. I have the whole package done with me. Even have a medical examination with a therapist