I entered the U.S on a K-1 visa in August 2005, got married to my US Citizen wife, and applied for AOS.

Unfortunatly, our marriage started to break down after a short while. at this stage my AOS was pending.

I made a Info Pass at my local office and told the officer that we had problems with our marriage, and what were my options of staying in the U.S. Basicly I was told that if both my wife and I didn't attend my AOS interview, I would have leave the States or return home, being England.

So, in July 2006 I had all my belongings shipped back to the UK, and returned myself.

Afer a couple of months back home my wife started to make contact with me, saying what a terrible mistake she had made, and wanted me back, however, I was very reluctant in returning to the U.S after just rebuilding my life back in England. But we kept in contact by phone and email on a regular basis.

This past Christmas, friends of mine who live in the States invited me for the holidays. I entered the States on the Visa Waiver Program with no problems.

During my stay my wife and I spent a lot of time together and sorted out most of our problems, which was great.

Now, I'm back in England. We have both decided we want the marriage to work and I am planning on returning to the States within a few weeks. I will enter the States on the Visa Waiver Program again. But I'm very concerned about my next step.

Should I reapply for AOS and Work Authorisation?

Should we file for Family Based Visa I-130?

Can I legally stay in the States while it's being processed?

Any positive advice would be welcome....Thanks

Something like that is probably more common than you realize. I am assuming you are still legally married. This is just a guess but I would see no reason to not just return to the USA and file for you AOS & EAD. Hopefully someone can tell you for sure.

Congratulations on being able to work things out!! I applaud your efforts to remain together!!

I'll let someone else who has experience with this answer more directly, but I would imagine that you will be denied entry on the VWP. Your departure resulted in your AOS being abandoned.... your wife may need to apply for a K3 visa to bring you back into the US. I'll be following this post as I'm curious as to others' advice.

Best wishes and congratulations!!

Jen

Yep, I'm pretty sure that's what the K3 or IR/CR1 visas are for-

otherwise I wouldn't know why they'd exist in the first place.

You can not enter the US on the VWP if you have the intent to immigrate- that I'm sure of.

Please correct me if I'm wrong-

good luck!

He already said he came here at Christmas on the VWP.

I'm more curious as to where you were in the AOS process when you returned to England. Did you have AP?

that was my thought too

Thanks... yep, thought about that, got distracted, and then wrote what I wrote. Having AP would allow re-entry without difficulty. Should be able to resume AOS then.... ???

Possibly, but the fact that he had an Infopass appt and was told at that appt that if he and his wife didn't attend the AOS interview & he returned to England, then all was fine.

I suppose the question (besides did he receive AP or not) is was there an AOS interview scheduled, and if so, did no one attend? It sort of reads as if there was an interview, as the OP asked about 'reapplying' for AOS (which I don't believe is possible).

My feeling is they will have to start again with the I 130, but we lack complete information to know for sure.

This is a question to pose to competent immigration counsel.