Can I still apply for ESTA after abandoning AoS Application?

[Zeriox 0]

"Have you ever stayed in the United States longer than the admission period granted to you by the U.S. government?"

 

My answer to that should be no because I sent the AoS package to the USCIS in time. So I was there legally the whole time.

 

Is there maybe a phone number I can call? I tried to call the US embassy in my country, but they told me they can't help me. There has to be someone I can talk to.

 

[Boiler 43,401]

You could talk to a Lawyer, you could see if your ESTA has been cancelled, how long were you in the US?

[carmel34 3,529]

12 hours ago, Zeriox said:

All I'm asking is if I can visit my wife for maybe 2 weeks on ESTA.

Given your circumstances, it may be a better idea for her to go and visit you in the UK, probably a lower chance for refused entry, all you can do is save up for the airfare and give it a try.  And to be together in the long run, one of you will have to file for a spousal visa for the other.

[geowrian 22,335]

13 minutes ago, Zeriox said:

"Have you ever stayed in the United States longer than the admission period granted to you by the U.S. government?"

 

My answer to that should be no because I sent the AoS package to the USCIS in time. So I was there legally the whole time.

 

Is there maybe a phone number I can call? I tried to call the US embassy in my country, but they told me they can't help me. There has to be someone I can talk to.

I think you are confusing a period of stay authorized with that of lawful status.

 

FAM memo (for DOS purposes): https://www.aila.org/File/EmbeddedFile/47735

Quote

(2) Distinction Between "Unlawful Status" and "Unlawful Presence"

To understand the operation of sections 212(a)(9)(B) and 212(a)(9)(C)(i)(l) of the Act, it is important to comprehend the difference between being in an unlawful immigration status and the accrual of unlawful presence ("period of stay not authorized"). Although these concepts are related (one must be present in an unlawful status in order to accrue unlawful presence), they are not the same. As discussed in chapters 40.9.2(b)(2) and (3), there are situations in which an alien who is present in an unlawful status nevertheless does not accrue unlawful presence. As a matter of prosecutorial discretion, DHS may permit an alien who is present in the United States unlawfully, but who has pending an application that stops the accrual of unlawful presence, to remain in the United States while that application is pending. In this sense, the alien's remaining can be said to be "authorized." However, the fact that the alien does not accrue unlawful presence does not mean that the alien's presence in the United States is actually lawful.

 

and USCIS policy manual (for USCIS purposes): https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-3

Quote

D. Difference between Lawful Immigration Status and Period of Authorized Stay

Lawful immigration status is distinct from being in a period of authorized stay. Periods of authorized stay are only relevant when determining an alien’s accrual of unlawful presence for inadmissibility purposes. ^[17] Although an alien in a lawful immigration status is also in a period of authorized stay, the opposite is not necessarily true. Those in a period of authorized stay may or may not be in a lawful immigration status.

Officers consider the difference between lawful immigration status and a period of authorized stay when determining whether an alien is in lawful immigration status for purposes of the INA 245(c)(2) adjustment bar.

E. Effect of Pending Application or Petition

A pending application to extend or change status (Form I-129 or Form I-539), a pending adjustment application, or a pending petition does not confer lawful immigration status on an alien. In addition, a pending application or petition does not automatically afford protection against removal if the alien’s status expires after submission of the application. The alien may have no actual lawful status in the United States and may be subject to removal proceedings unless and until the extension of stay (EOS) application, change of status (COS) application, adjustment application, or petition is approved. 

...

2. Adjustment

A pending adjustment application does not put an alien in a lawful immigration status. For example, if USCIS previously denied adjustment of status to an applicant and the applicant reapplies for adjustment, the period the first application was pending does not count as time spent in lawful immigration status.

 

Edited January 28, 2020 by geowrian

[Zeriox 0]

Ok so that means if we don't apply for a greencard I might never be able to go back to the US?

[Ash.1101 1,755]

1 minute ago, Zeriox said:

Ok so that means if we don't apply for a greencard I might never be able to go back to the US?

You can always try for a physical B-2 visa, chances of that are probably low because you have already entered the country, applied for AOS and then abandoned it, so you have established immigrant intent without question, but realistically your best route will be Spousal Visa.

 

[SusieQQQ 11,584]

16 minutes ago, Zeriox said:

"Have you ever stayed in the United States longer than the admission period granted to you by the U.S. government?"

 

My answer to that should be no because I sent the AoS package to the USCIS in time. So I was there legally the whole time.

 

Is there maybe a phone number I can call? I tried to call the US embassy in my country, but they told me they can't help me. There has to be someone I can talk to.

 

one could technically say the answer is yes, because the admission period was 90 days. This is not the same as authorized stay.

 

I’d suggest you do a search of the forums here to see the types of instances where people have been refused on ESTA. It is almost always in my recollection to visit a significant other. As boiler said, imagine the discussion in secondary. 
“So... the last time we let you in on ESTA you stayed and filed for adjustment. How do we know you’re not going to do that again? Oh, because you say so? Tell us again about your job and your spouse back home and other ties.... oh, ok....” .... 

[Zeriox 0]

I don't think it's possible for me right now to get a greencard. Immigration is a lot harder now because of this new Public Charge Rule. I have a disability (autism) and I don't have a high school diploma. I only worked part time in my home country and I don't know how to prove to the USCIS that I won't become a public charge. They don't want people like me in the US.

 

I live in Germany and my wife lived with me here for a few months before we got married and she didn't like it at all. Plus she doesn't speak german. So she really doesn't want to move to Germany. I wouldn't mind living in the US but I'm not sure how to get a greencard in my case. Like I said I don't have much and the USCIS won't like that.

[yuna628 9,527]

7 minutes ago, Zeriox said:

I don't think it's possible for me right now to get a greencard. Immigration is a lot harder now because of this new Public Charge Rule. I have a disability (autism) and I don't have a high school diploma. I only worked part time in my home country and I don't know how to prove to the USCIS that I won't become a public charge. They don't want people like me in the US.

 

I live in Germany and my wife lived with me here for a few months before we got married and she didn't like it at all. Plus she doesn't speak german. So she really doesn't want to move to Germany. I wouldn't mind living in the US but I'm not sure how to get a greencard in my case. Like I said I don't have much and the USCIS won't like that.

What does your wife have though? That's a pretty big factor. She'd be the sponsor. Your specs are well, not as important if she can overcome it.

[Boiler 43,401]

Autism would not be an issue for a medical and they do ask for your prior work history but that is not normally a deciding factor.

 

Best thing is for her to show a job, income comfortably above the Sponsorship requirements,

[SusieQQQ 11,584]

6 minutes ago, Zeriox said:

I don't think it's possible for me right now to get a greencard. Immigration is a lot harder now because of this new Public Charge Rule. I have a disability (autism) and I don't have a high school diploma. I only worked part time in my home country and I don't know how to prove to the USCIS that I won't become a public charge. They don't want people like me in the US.

 

I live in Germany and my wife lived with me here for a few months before we got married and she didn't like it at all. Plus she doesn't speak german. So she really doesn't want to move to Germany. I wouldn't mind living in the US but I'm not sure how to get a greencard in my case. Like I said I don't have much and the USCIS won't like that.

Well, what is the long term plan for your relationship then? Learning German is not that hard by the way. English is a Germanic rooted language and it’s way easier than people think to learn German. 

 

Not to pry but it is kind of relevant to the public charge issue - you mention worked (past tense) part time in your home country and you don’t seem to have a job. Are you living on welfare now? If so, the best way to convince uscis you won’t be a public charge is to actually not be one, by finding a job and supporting yourself. 

[SusieQQQ 11,584]

3 minutes ago, Boiler said:

Autism would not be an issue for a medical and they do ask for your prior work history but that is not normally a deciding factor.

Best thing is for her to show a job, income comfortably above the Sponsorship requirements,

There have been a couple of posts of people being denied for not having worked in their home country, though as I recall those were not spouse visas.  
 

 

14 hours ago, Zeriox said:

That's not what I mean. I'm just asking if I can ever visit the US on ESTA again to go on vacation. Right now we're not able to file again. We don't have enough money and she lost her job so we don't have a sponsor. But I need to know if I can go back on ESTA to visit her for 2 weeks or just go on vacation.

OP already mentioned wife’s income situation, for those recent posts asking.

Edited January 28, 2020 by SusieQQQ

[Boiler 43,401]

1 minute ago, SusieQQQ said:

There have been a couple of posts of people being denied for not having worked in their home country, though as I recall those were not spouse visas.  

Inevitably on here we see those at the margins more than the norm, obviously most move here without an issue, I can also think of a few cases but they were out there. I am sure many who have mentioned autism moved without issue.

[Zeriox 0]

I know that our case is definitely not easy and normal.

 

I met her online a few years ago. She has autism too. I was diagnosed with "traits of autism" and she was diagnosed with "asperger-syndrom".

 

We're both in a very similar situation. She worked at walmart for a while but then lost her job and her parents agreed to sponsor me so we could stay together in the US. But now they don't want to help us again. They recently moved to another state and don't want to get involved anymore.

 

My wife is on SSDI (Disability Money) now. I'm not receiving any benefits in my country. And I never did in the past.

 

So it doesn't look good for us. Her disability is one of the reasons she can't live in another country. She doesn't like change. Not even other states.

[SusieQQQ 11,584]

14 minutes ago, Zeriox said:

I know that our case is definitely not easy and normal.

 

I met her online a few years ago. She has autism too. I was diagnosed with "traits of autism" and she was diagnosed with "asperger-syndrom".

 

We're both in a very similar situation. She worked at walmart for a while but then lost her job and her parents agreed to sponsor me so we could stay together in the US. But now they don't want to help us again. They recently moved to another state and don't want to get involved anymore.

 

My wife is on SSDI (Disability Money) now. I'm not receiving any benefits in my country. And I never did in the past.

 

So it doesn't look good for us. Her disability is one of the reasons she can't live in another country. She doesn't like change. Not even other states.

So how are you surviving with no income?

Yes, from how you've described your current circumstances, it would seem that the chances of being successfully sponsored are slim. Is your wife not looking for another job? The jobs market is so hot right now, I see help wanted signs everywhere, certainly at every retailer big and small. By the way don't know where your wife lives but I live in California, which is very supportive to people with autism. I know people all along the spectrum here, from so high-functioning you barely see it unless you know, to those who need to live in group homes with sheltered employment. 

Sorry if these questions seem intrusive but they are germane to whether or not you and your wife will actually be able to make a life together here.

 

 

Edited January 28, 2020 by SusieQQQ