Risk of flying on ESTA (tourist visa) with pending I-130 with kids?

[Femke Muntz 4]

Hi everyone,

I'm new here looking for advice, please. I have a pending I-130 since March 13th 2022. My husband is American, and we have five children. I've been a permanent resident before for 10 years but let my card expire 4 years ago and have been living in my home country the Netherlands since 2015.

 

I am planning to travel on an ESTA to visit my husband and three kids end of November. The two little ones are with me. I know it's a big risk and I might be denied entry. What would be the best possible way to do this?

1. I travel alone with my youngest two and get return tickets for us three as proof. What other proof could I show?

2. My husband comes to get me and the kids and we all fly back and show return tickets for us three or

3. I travel completely alone without kids.. with a return ticket just for me.

 

Also, will it help if they see I've been a permanent resident for ten years with no bad record, and is it better to say on my ESTA that I'm not employed or self-employed? I'm an artist making very little money. I wonder what immigration would see as more of a risk.

 

Thank you all!

[Boiler 45,486]

Did you file the I 407

[Femke Muntz 4]

No I never did, I just let it expire.

[Boiler 45,486]

The card can expire but that is just evidence of your status.

 

Were you approved for ESTA?

[Femke Muntz 4]

Haven't applied for it yet but should be no issue. I'm just nervous about flying with kids and husband... trying to convince immigration I'm returning in 90 days.. which obviously I will. Being deported with the kids would be traumatic. But flying alone seems like I'm hiding my family or something...

Edited October 14, 2022 by Femke Muntz

[Boiler 45,486]

I sort of assumed the children would be USC's.

 

I would anticipate US system still shows you as being a LPR

[Femke Muntz 4]

The kids are dual citizens. And I read that being out of the country for so long makes you no longer a lawful permanent resident. You have to reapply. 

[Boiler 45,486]

So the kids would not be deported

 

Losing status is a lot more complicated than you think, I have seen many people successfully return who have been out a lot longer than you 

[pushbrk 12,882]

3 hours ago, Boiler said:

So the kids would not be deported

 

Losing status is a lot more complicated than you think, I have seen many people successfully return who have been out a lot longer than you 

Maybe but that doesn't answer her question.  It's a risk.  Least risky is to travel alone, making your young children your tie to the Netherlands.  What other evidence exists of your ties to the home country?  If you're coming for 90 days, I take it there is no job.  Is there a house that needs to be sold?  Travelers using ESTA should ALWAYS have return tickets for a date no later than 90 days from entry.  89 is better.

 

To be clear, your card (if it was good for 10 years) expired but your residency status did not.  Where there would be a problem is trying to enter the USA using the card after leaving for 4 years.  If you can get ESTA, that's the way to go, IMO.

 

Edited October 14, 2022 by pushbrk

[Boiler 45,486]

2 minutes ago, pushbrk said:

Maybe but that doesn't answer her question.  It's a risk.  Least risky is to travel alone, making your young children your tie to the Netherlands.  What other evidence exists of your ties to the home country?  If you're coming for 90 days, I take it there is no job.  Is there a house that needs to be sold?  Travelers using ESTA should ALWAYS have return tickets for a date no later than 90 days from entry.  89 is better.

OP does not currently have an ESTA and is a part time artist.

 

No mention of what the longer term plan is, sounds like it does not include moving to the US.

 

I personally would not leave it that close, 89 days and things can go wrong, an entry that long may also raise eyebrows, but first see if you can get ESTA. 

[pushbrk 12,882]

1 minute ago, Boiler said:

OP does not currently have an ESTA and is a part time artist.

 

No mention of what the longer term plan is, sounds like it does not include moving to the US.

 

I personally would not leave it that close, 89 days and things can go wrong, an entry that long may also raise eyebrows, but first see if you can get ESTA. 

In her first post she mentions having an I-130 pending.  It's in the thread title too.  Yes, first apply for ESTA.  Yes the shorter the visit, the less the risk.

 

[Femke Muntz 4]

Thank you! Yes my plan is moving there permanently. Our house in the Netherlands is sold and we have to be out December 16. So no more ties there unfortunately. No work ties either. I can’t leave my youngest two behind of course so they have to travel with me or their dad separately. But that seems id be hiding them. My older two boys are going next week by themselves with assistance. I can go for two months and not three if that looks better. 
 

How long should I stay in the Netherlands in between us visits? 

[pushbrk 12,882]

1 hour ago, Femke Muntz said:

Thank you! Yes my plan is moving there permanently. Our house in the Netherlands is sold and we have to be out December 16. So no more ties there unfortunately. No work ties either. I can’t leave my youngest two behind of course so they have to travel with me or their dad separately. But that seems id be hiding them. My older two boys are going next week by themselves with assistance. I can go for two months and not three if that looks better. 
 

How long should I stay in the Netherlands in between us visits? 

You must spend more time outside the USA than inside.  You are a "visitor".  There's no magic rule, but if it looks like you're abusing the visitor privilege, you will be turned away and lose the privilege.  

Another possibility is to fly through Dublin, so if you're turned away, you are closer to home.  Dublin has US Preclearance, so you effectively enter the US or not, in Dublin.

[Femke Muntz 4]

14 hours ago, Boiler said:

Did you file the I 407

 

1 hour ago, pushbrk said:

You must spend more time outside the USA than inside.  You are a "visitor".  There's no magic rule, but if it looks like you're abusing the visitor privilege, you will be turned away and lose the privilege.  

Another possibility is to fly through Dublin, so if you're turned away, you are closer to home.  Dublin has US Preclearance, so you effectively enter the US or not, in Dublin.

If I stay for two months and then three months in the Netherlands "while I wait for my visa"... that should be ok right? Maybe even mention to immigration I'm going back for my interview and biometrics at the embassy in Amsterdam? Does it look worse or better if my husband flies with me and the little kids? Just in case I get deported, he can take the kids for a couple of weeks and then fly them back. Ugh it's so stressful not knowing. I think it all depends on the immigration officer too? Gotta catch a nice person...

[SusieQQQ 11,586]

I’d suggest first actually applying and getting approved for ESTA before asking all the questions. It takes a few minutes, yes?