Overstayed ESTA, had child and married US citizen.

[Torgi 2]

I came to the Us in 2020 on an esta to spend time with my boyfriend. However my country Australia was making it very difficult to get back so the US kept extending my visit untill June 2021. I found out I was pregnant and stayed and had the baby. Me and my boyfriend then decided to get married. However I need to go back to Australia due to a family emergency next month. What ways can i go about this so I wont be banned. I am fine with staying here in Australia for longer than a few months. Also to mention spouse is a former service member. 

[SalishSea 17,836]

4 minutes ago, Torgi said:

I came to the Us in 2020 on an esta to spend time with my boyfriend. However my country Australia was making it very difficult to get back so the US kept extending my visit untill June 2021. I found out I was pregnant and stayed and had the baby. Me and my boyfriend then decided to get married. However I need to go back to Australia due to a family emergency next month. What ways can i go about this so I wont be banned. I am fine with staying here in Australia for longer than a few months. Also to mention spouse is a former service member. 

Did your spouse file the correct petitions/forms for your green card, as well as for advanced parole and work authorization?  If you leave without advance parole, you will not be readmitted, and your green card application will be abandoned.  Being former service member has no impact.

 

The overstay won't have an impact on future immigrant visas, but you will not get another ESTA.  Your spouse can petition you for a spouse visa while you're in Australia, but it will likely take upwards of a year+, not months.

[Crazy Cat 41,887]

22 minutes ago, Torgi said:

I came to the Us in 2020 on an esta to spend time with my boyfriend. However my country Australia was making it very difficult to get back so the US kept extending my visit untill June 2021. I found out I was pregnant and stayed and had the baby. Me and my boyfriend then decided to get married. However I need to go back to Australia due to a family emergency next month. What ways can i go about this so I wont be banned. I am fine with staying here in Australia for longer than a few months. Also to mention spouse is a former service member. 

Your post is unclear to me.  Where are you right now?  If you are in the US, Have you been out of status since June 2021?  

Your spouse's status as an ex-vet is irrelevant.

Edited October 12, 2022 by Crazy Cat

[Torgi 2]

14 minutes ago, Jorgedig said:

Did your spouse file the correct petitions/forms for your green card, as well as for advanced parole and work authorization?  If you leave without advance parole, you will not be readmitted, and your green card application will be abandoned.  Being former service member has no impact.

 

The overstay won't have an impact on future immigrant visas, but you will not get another ESTA.  Your spouse can petition you for a spouse visa while you're in Australia, but it will likely take upwards of a year+, not months.

No we havent filed for anything since we have been busy with a baby, but i started to fill out petition for alien relative and havent filed it.

 

 

4 minutes ago, Crazy Cat said:

Where are you right now?  If you are in the US, Have you been out of status since June 2021?  

Have been in the US since november 2020 and havent left.

Edited October 12, 2022 by Torgi

[Crazy Cat 41,887]

2 minutes ago, Torgi said:

No we havent filed for anything since we have been busy with a baby, but i started to fill out petition for alien relative and havent filed it.

 

 

Have been in the US since november 2020 and havent left.

Have you been out of status since June 2021?  If so, you are going to incur a 10 year ban if you leave the US.  

Edited October 12, 2022 by Crazy Cat

[Timona 4,207]

Basically, you either stay put, get those papers ready, file and wait 9 months for advanced parole or you leave and incur a 10 year ban. Your choice 

[Crazy Cat 41,887]

3 minutes ago, Timona said:

Basically, you either stay put, get those papers ready, file and wait 9 months for advanced parole or you leave and incur a 10 year ban. Your choice 

Bingo!!!!!   There is NEVER an advantage in waiting to file an I-485 package. Sometimes, the delay can be disastrous.  

Edited October 12, 2022 by Crazy Cat

[SalishSea 17,836]

32 minutes ago, Torgi said:

I came to the Us in 2020 on an esta to spend time with my boyfriend. However my country Australia was making it very difficult to get back so the US kept extending my visit untill June 2021. I found out I was pregnant and stayed and had the baby. Me and my boyfriend then decided to get married. However I need to go back to Australia due to a family emergency next month. What ways can i go about this so I wont be banned. I am fine with staying here in Australia for longer than a few months. Also to mention spouse is a former service member. 

So it seems the choices you've made previously have led to your current situation:  you cannot easily leave for an emergency and return, since you are well out of status.

 

This leaves two choices:

 

1)  Have your spouse do the paper work for your green card, advance parole and EAD immediately.   Hopefully, you'll have the AP in < one year, and you could leave temporarily at that point.

 

2) Leave now and have your spouse petition you while you're in Australia.  You will need a waiver for the overstay, which adds a year or so to the overall process.  Expect to be out of the US for several years.

[Ontarkie 14,227]

Get the paper work sent in. A family emergency that is planned next month is not really an emergency that I would risk a 10 year ban for. 

 

Get that paperwork sent in and once you get a receipt you can try your luck with this emergency to get Emergency AP. 

[Dashinka 24,512]

I agree with the other posters above as to your options.  The only thing I would add is if you file the AOS package along with the I131 (advanced parole), you can try and request an expedited AP which would depend on the nature of the family emergency.

 

Good Luck!

[Crazy Cat 41,887]

39 minutes ago, Torgi said:

No we havent filed for anything since we have been busy with a baby, but i started to fill out petition for alien relative and havent filed it.

I think your spouse needs to join us here on VJ.   Here is link to the VJ guide you need to follow:

 

Step-by-Step Guide on Filing an I-130 for a Spouse Inside the US - US Immigration & Visa Guides - VisaJourney

[Torgi 2]

1 minute ago, Dashinka said:

I agree with the other posters above as to your options.  The only thing I would add is if you file the AOS package along with the I131 (advanced parole), you can try and request an expedited AP which would depend on the nature of the family emergency.

 

Good Luck!

Thank you! The family emergency is my grandfather very sick and is dying and has not long to live  And to the other people I thought spouses of US service members can get certain things expedited and have the fees waived? 

[SalishSea 17,836]

3 minutes ago, Torgi said:

And to the other people I thought spouses of US service members can get certain things expedited and have the fees waived? 

Not in this situation, no.

 

And 'expedite' in terms of getting the AP may not actually be in line with your timeline.  It could take a month or more even for an expedited AP.

[Crazy Cat 41,887]

20 minutes ago, Torgi said:

And to the other people I thought spouses of US service members can get certain things expedited and have the fees waived? 

You said former service member....big difference.   Jut review my case to see.  I am truly sorry to hear your grandfather is not well.  

Edited October 12, 2022 by Crazy Cat

[SalishSea 17,836]

6 minutes ago, Crazy Cat said:

You said former service member....big difference.   Jut review my case to see.  I am truly sorry to hear your grandfather is not well.  

I may be wrong, but even for current service members.....the only expedites I've seen that are directly related to being in the military was when there was a deployment involved.