K1 approved, left before AOS, Can she Visit?

[ScottWhite9 0]

Hi there, I hope this is the right forum for this. Basically I applied for a K1 visa years ago for my wife (Australian), we got approved, we had 3 months to marry, we did that within the 3 months. However, after we got married we did nothing (did not file for AOS or anything) she stayed with me in the US for about 6 months and we decided we wanted to go live at her home in Australia, so we did that. Now about 2 years later, she wants to go visit family with me for a few weeks in the US. My question is, can she do that with a simple ESTA? Would it be approved or denied or should i start somewhere else? Would she be let in? What problems would we incur? Please let me know whatever information you can give, thanks. Scott

[TBoneTX 47,687]

*** Thread moved from K-1 Process forum to Working & Traveling forum -- topic isn't a K-1 process issue. ***

[hmh33 117]

Applying for the ESTA is a reasonable first step.

[Villanelle 4,123]

I dont think youre going to get the ESTA.

Youre wife came on a K1. You were married, you needed to apply for AOS and you didnt.

When you have a K1 you cant leave the country with out advance parole. If you do, you can not get back in, you need to apply for a spousal visa.

Its most likely theyre going to view her ESTA application as a way for her to get back into the US as a way to bypass the overseas spousal visa route.

Meaning shes supposed to be overseas and shes supposed to remain there while its being processed. But if shes somehow in the US when you file (because shes on a travel visa or here illegally) you can file with waiver if needed and bypass the regular process and adjust her status while shes here.

So to get the ESTA youre going to have to convince them the trip is just for travel and not to get her to the US to adjust her status. To do so youd have to show proof she has a residence overseas, a job, strong ties there. That you have no intent to make the US your home, etc.

[Harpa Timsah 13,260]

You should apply for ESTA first and see what it says. I think you'll be denied because she should have a 3-year ban for overstaying 6 months, but try ESTA first and see.

[Moomin 292]

The overstay would only be around 90 days. If she stayed in the US for 6 months total, then the first half was the 90 days as stated on the I94. Less than 180 days is not a ban. However, not having a ban doesn't mean that your wife can use ESTA. If she stayed in the US for a total of 9 months (3 months lawfully, 6 months unlawfully) it's a different story and there'd be a 3 year ban from the time of her leaving the US.

WHile it might not have a concequense with a ban, remember that she had a reason for immigrating back then which shows in her file(if even looked at). So - a few dollars it'll cost her to apply for ESTA. If it's denied, she can try to go for a tourist visa as long as she can prove her ties to home country so she has every reason to return to home country after visiting the US. While you don't really have anything to do with her tourist visa, she's still married to a US citizen and might be taken into consideration.

Soo.. Apply for ESTA and let us know the outcome.

[Harpa Timsah 13,260]

I read it that they stayed 6 months after the 90 days. OP: How long did your wife stay in the US after the original 90 day period? If 180 days or more, then she has a 3-year ban. If less, she has no ban.

[Touch of Treble 39]

$20 to apply for the esta...cheap really. Try it and see.

[hmh33 117]

$14 if approved, $4 if denied. Use the official ESTA site https://esta.cbp.dhs.gov/ not one of the many ripoff "services" that try to mislead you into paying more..