Looking to move back to Aus with USC

[Simon and Janet 6]

Hello,

I came to the U.S on a K1 visa and i'm currently going through AOS. My wife and I are very strongly considering moving to Australia sometime in the very near future. I have a few questions before we begin that process.

As I understand it, I would be considered to have abandoned the visa i came over on if we leave before i become a U.S citizen. If in the future we for some reason decided to move back to the U.S would we go about that by filing a Spousal Visa (IR1 / CR1), or Direct Consular Filing?

And would we be able to file that while we both were still in Australia?

Another question is; Considering I arrived in January 2010 and will have left without finishing the visa process, will that be considered to be an overstay? I know the Visa Waiver Program allows me as a tourist to stay a max of 90 days, but i'm unclear whether being here for over a year and not receiving a green card will fall under an overstay and subject me to a lengthy ban. We'd still like to be able to come back and visit family.

Thank you.

Simon and Janet.

[Ryan H 3,791]

Strictly speaking, if you leave before the AOS process is complete and you do not have Advanced Parole (AP), then your application for AOS (not visa) would be considered abandoned.

If you decided to move back in the future and your wife was a lawful resident of Australia (6 months is the minimum), then she could DCF.

Overstay does not apply in your case. If you married within 90 days of arrival on the K1, then there is no overstay.

[VanessaTony 3,567]

Unfortunately yes you have an overstay. Your NOA1 is dated 1 year and 3 days after you arrived in the US. You are given 90 days of authorised stay by the I-94 so you have roughly 9 months of overstay... this means a 3 year ban. Had you waited even longer and had over a year past your I-94 date of overstay that's a 10 year ban.

What I would do if I were you is FIRST, do not leave until you have the greencard. This "removes" the ban risk and doing CR-1 and DCF will be much easier.

If you're not sure how long you want to stay in Australia you COULD apply for a re-entry permit before leaving the US which allows you to remain outside the US for up to 2 years without abandoning your GC. If you're sure that you won't be back in time then I would wait till you're back in Aus then relinquish your GC at a US embassy in Australia. This won't be held against you, you won't have an overstay ban and you can return to the US with an appropriate visa when the time comes. Unfortunately due to your overstay the VWP is no longer an option. Even though getting the GC means no ban, the overstay is still there and preventing VWP use.

You filed in Feb so I'm thinking you should have your GC in a month or two. Hopefully you can hold out that long.

Edited April 3, 2011 by Vanessa&Tony

[Simon and Janet 6]

Ah wow! I'm glad I asked!

I can certainly wait out the few months until the GC. Although i'm surprised I won't be able to use the VWP again even if i hand in my GC at an embassy back in Australia.

Is that just for 3 years, or would i be able to visit the U.S after the 3 year period on the WVP?

Ideally, we'd wait out for me to get my Green Card, then go through the Aus visa process to bring my wife over, and come back to the U.S periodically to visit her family.

When i entered in January 2010 that was on a visa, so basically because i overstayed the visa, not the VWP right?

If i am unable to use the VWP do i visit on a tourist visa?

Sorry, this is all very confusing lol.

[Brother Hesekiel 2,235]

I wanted to give you the perfect answer, but the lady at the I-800-PSYCH line told me that telling me what your situation will be in 2 years would require a credit card, so I passed and hung up.

Hence, unless you have access to a sure fire connection into the future, here's what you want to do to get your money's worth:

- Complete the AOS process and get your hands on that green card.

- Leave for Kangarooland and see how everything's working out.

- If after 6-or-so months everything is happy-happy, return to the Land of Milk and Honey and get a Reentry Permit. It will be valid until you have to remove conditions which is exactly 2 years after the date your AOS was approved.

- If by then you are still in upside-down heaven, surrender your GC. If you ever want to return to the US, file an IR-1 via DCF. If the bubble has burst or is about to burst--for any reason--the backdoor is still open for you.

No need to step on the railroad tracks until you can hear the train approaching.

[Barbara J 115]

Unfortunately yes you have an overstay. Your NOA1 is dated 1 year and 3 days after you arrived in the US. You are given 90 days of authorised stay by the I-94 so you have roughly 9 months of overstay... this means a 3 year ban. Had you waited even longer and had over a year past your I-94 date of overstay that's a 10 year ban.

What I would do if I were you is FIRST, do not leave until you have the greencard. This "removes" the ban risk and doing CR-1 and DCF will be much easier.

If you're not sure how long you want to stay in Australia you COULD apply for a re-entry permit before leaving the US which allows you to remain outside the US for up to 2 years without abandoning your GC. If you're sure that you won't be back in time then I would wait till you're back in Aus then relinquish your GC at a US embassy in Australia. This won't be held against you, you won't have an overstay ban and you can return to the US with an appropriate visa when the time comes. Unfortunately due to your overstay the VWP is no longer an option. Even though getting the GC means no ban, the overstay is still there and preventing VWP use.

You filed in Feb so I'm thinking you should have your GC in a month or two. Hopefully you can hold out that long.

I am so confused here why would he be out of status? He came here on his K1 visa and married his USC. So he fulfilled his obligations as to the K1 visa. Why is he is overstay he has applied for AOS and they are waiting for that now. K1 you have 90 days to get married not to stay that's on a VWP and he did not come over in that.

[Brother Hesekiel 2,235]

Let me try to answer that, Barbara.

You are correct: K-1 enters the USA, gets I-94 with a validity of 90 days.

They get married within the 90-day time frame and file for AOS. At this time the foreigner enters a period of authorized stay.

If he or she now leaves the US before the AOS petition is adjudicated, meaning they don't show up for the AOS interview (assuming there is one), the AOS will be denied. In any case, leaving the US while AOS is standing kills the process.

Thus, by the time the foreigner leaves the US, overstay has been accrued. If that's 180 days or more by the time they leave, it will trigger the 3-year bar.

[VanessaTony 3,567]

Ah wow! I'm glad I asked!

I can certainly wait out the few months until the GC. Although i'm surprised I won't be able to use the VWP again even if i hand in my GC at an embassy back in Australia.

Is that just for 3 years, or would i be able to visit the U.S after the 3 year period on the WVP?

Ideally, we'd wait out for me to get my Green Card, then go through the Aus visa process to bring my wife over, and come back to the U.S periodically to visit her family.

When i entered in January 2010 that was on a visa, so basically because i overstayed the visa, not the VWP right?

If i am unable to use the VWP do i visit on a tourist visa?

Sorry, this is all very confusing lol.

So I looked at the ESTA stuff and it appears it's changed since I last saw it. I can't see the question that used to be there asking whether you had any previous overstay... I didn't want to fill it in though so perhaps you'll have to do it to see what happens when the time comes.

If there is no question about the overstay you might be okay. There's no waiting period you can just try and visit whenever you want. I would complete the ESTA stuff WAY ahead of time if you plan to visit to double check that you're eligible and if you're not you can apply for a B2 (and if you need to apply for a B2 I would try a multiple entry one so you're free to visit whenever). I've always read that your overstay (and mine too 'cause I overstayed) means that I can't use the VWP... but I can't see the overstay question anymore so maybe we're okay At the very least don't leave till you have the GC because the ban is basically assured if you don't.

I like what Bob said about the GC stuff too. I would hold onto the GC and if possible visit the US to get a re-entry permit OR get a re-entry permit before you leave to see how you feel once you're there. You can always give you GC up later. Otherwise DCF should be relatively easy.. read up on what's involved with that to see whether you think it's easier to try and keep the GC, or give it up to DCF later.

[VanessaTony 3,567]

I am so confused here why would he be out of status? He came here on his K1 visa and married his USC. So he fulfilled his obligations as to the K1 visa. Why is he is overstay he has applied for AOS and they are waiting for that now. K1 you have 90 days to get married not to stay that's on a VWP and he did not come over in that.

Bob answered but I will too. The OP arrived in Jan 2010 and didn't file her AOS till a YEAR after she arrived. Yes she married in the 90 days but that does NOTHING to secure her status. She is STILL bound by the I-94 and not AOSing before the I-94 expires there are overstay days. Overstay doesn't affect eligibility for AOS (to a USC).

Even though he's married to a USC if he was caught by ICE (even after filing AOS but before receiving the GC) he is out-of-status and they will probably detain him and send him before an immigration judge who will allow him to file AOS (if he hasn't) or wait out the results of the AOS.

This is why people say you should file AOS before the I-94 expires to avoid ever being out-of-status.. sometimes it's not possible to file before the I-94 expires but he still overstayed his visa and getting his GC won't change the fact if ever asked (I know some immigration documents ask) "Have you ever overstayed?" his answer would be yes. **fingers crossed** he's still allowed to use the VWP that would mean if I ever do this that I am too

[Fandango 1,439]

Bob answered but I will too.

Why?

[VanessaTony 3,567]

Why?

Because he didn't address the fact the OP filed AOS a year after he arrived. He was also incorrect when he stated that leaving before AOS is approved means overstay. If the OP HAD filed while the I-94 was still valid the period of authorised stay doesn't count as overstay days and they won't have a ban if they leave before AOS is complete.

Edited April 4, 2011 by Vanessa&Tony

[Simon and Janet 6]

I greatly appreciate the responses.

So once i do get the GC, might the overstay (between the expiry of the I-94 and filing of AOS) be dismissed or forgiven because i did continue with the process and had the AOS approved and a GC issued?

[SophWeb 25]

So once i do get the GC, might the overstay (between the expiry of the I-94 and filing of AOS) be dismissed or forgiven because i did continue with the process and had the AOS approved and a GC issued?

Yes, exactly.

If you get your GC, you will not have to worry about that overstay coming back to haunt you.

P.S. Just my two cents - I agree what Bob said about keeping the GC and getting the re-entry permit. Then you can keep your options open

[Simon and Janet 6]

Yes, exactly.

If you get your GC, you will not have to worry about that overstay coming back to haunt you.

P.S. Just my two cents - I agree what Bob said about keeping the GC and getting the re-entry permit. Then you can keep your options open

Yeah i'm thinking that might be a smart thing to do. There hopefully won't be an issue if we decide to apply for a visa for my wife to move to Aus, and I file for a re-entry permit once that her visa is approved.

The big worry for me was that if we did eventually settle in Australia i'd wouldn't be able to come back to the US as a tourist because i'd have left before becoming a citizen and incurred an overstay for that period between I-94 expiry and the AOS application.

DO you know if there is any consequence for applying for a re-entry permit and not coming back to the US within that 2 year window?

As an example; I've received my GC, I file for a re-entry permit just incase something unforeseen happens that i need to move back to the US. My wife's visa is accepted and we're happily living in Australia. In 2 years time we come to the US to visit her family for 2 weeks and that re-entry permit is expired. Am i able to just enter on the VWP, or would there be issues because i filed for the re-entry?

Alot of questions i know.

[Barbara J 115]

Bob answered but I will too. The OP arrived in Jan 2010 and didn't file her AOS till a YEAR after she arrived. Yes she married in the 90 days but that does NOTHING to secure her status. She is STILL bound by the I-94 and not AOSing before the I-94 expires there are overstay days. Overstay doesn't affect eligibility for AOS (to a USC).

Even though he's married to a USC if he was caught by ICE (even after filing AOS but before receiving the GC) he is out-of-status and they will probably detain him and send him before an immigration judge who will allow him to file AOS (if he hasn't) or wait out the results of the AOS.

This is why people say you should file AOS before the I-94 expires to avoid ever being out-of-status.. sometimes it's not possible to file before the I-94 expires but he still overstayed his visa and getting his GC won't change the fact if ever asked (I know some immigration documents ask) "Have you ever overstayed?" his answer would be yes. **fingers crossed** he's still allowed to use the VWP that would mean if I ever do this that I am too

Thankyou Bob and Vanessa I am now totally in the loop did not have my thinking cap on yesterday at all. I get so confused with some of this stuff and am I right if a person waits 2 years after marriage to file AOS they then have to send off 130 as well yeah?

And to Lisa because she can lol and Vanessa has helped me a lot with my move here.