Was my wife denied a visa

[Biabarida 7]

Hello. We are filling out our ESTA for my wife to come to the US. I am a US citizen and resident in Spain. She is a Spanish citizen ex resident of the US.

 

 

We applied for a family resident visa with the 530 back when we were planning on living in the us and were accepted. Then we didn't move on with the process once it was referred to USCIS in 2019. We checked in using the website several times a year to keep it current, but eventually we must have started doing it wrong because we got a notice that over a year had passed since we had contacted them in October 2021. In April I sent a message formally withdrawing our petition but I have yet to hear back from them (backlog). 

 

I feel like my wife should be eligible for the ESTA because she hasn't been denied a visa since the case is still open and our withdrawal hasn't been processed. am I missing something? 

 

 

 

[Boiler 45,482]

It would appear she never applied for a visa.

[Biabarida 7]

Boiler. Is that because we abandoned the process once it arrived at USCIS (the second step of the process)?

[Chancy 6,241]

1 minute ago, Biabarida said:

Is that because we abandoned the process once it arrived at USCIS (the second step of the process)?

 

If you submitted an I-130 petition, USCIS is the first step of the process.  NVC is the next.  If your wife never submitted a DS-260 form at NVC stage, then she never applied for a visa.  She couldn't have been denied a visa if she never applied.

 

[pushbrk 12,877]

2 hours ago, Chancy said:

 

If you submitted an I-130 petition, USCIS is the first step of the process.  NVC is the next.  If your wife never submitted a DS-260 form at NVC stage, then she never applied for a visa.  She couldn't have been denied a visa if she never applied.

 

While that is true, it is also true that if she never attended a visa interview, she could not have been denied a visa either, even if she HAD submitted a DS260.  

[carmel34 3,625]

14 hours ago, Biabarida said:

I feel like my wife should be eligible for the ESTA because she hasn't been denied a visa since the case is still open and our withdrawal hasn't been processed. am I missing something?

If you can't remember filling out the DS-260 then apply for ESTA.  If they find a visa denial in their system, ESTA could be denied.  She should be prepared with evidence of strong ties to Spain, to convince the CBP officer when entering the US on ESTA that she is going to return to Spain after a short visit in the US.  If you both have jobs in Spain, own property, etc. they are less likely to think that she will enter with ESTA and stay in the US where she could adjust status through you.  Good luck!

[Verrou 1,962]

i will try to apply for ESTA, you never know for sure until you try

[Biabarida 7]

She applied for an esta and was approved! Question answered! Thanks everyone!

[carmel34 3,625]

29 minutes ago, Biabarida said:

She applied for an esta and was approved! Question answered! Thanks everyone!

She should be prepared to answer questions about the I-130 petition that you filed for her in 2018 if the CBP officer asks about it.  She has shown previous immigrant intent and may be flagged for secondary inspection.

[Cathi 5,747]

Make sure she is 100% honest when entering the US, that she is only here to visit and not stay and adjust status because preconceived intent to adjust status on ESTA, is fraud and comes with severe consequences.

[Biabarida 7]

Thanks, Cathi. We have always followed the law and gone to lengths to communicate those attempts with CBP. I have a summer job in the States that we are hoping will allow our children to grow up knowing my grandparents better and also where I come from. We are small business owners in Spain and have enrolled my son in school. It's a little complicated because my wife is planning on taking a sabbatical next year to study for some exams, so she doesn't have a current contract, but we have no intentions of living in the US.