Adjusted Status from ESTA, have conditional GC. What are the consequences for giving it up?

[mickeyvickey 1]

Hi

I ended up doing AOS while visiting US with my spouse on ESTA. He is a USC. We had a change of circumstance as our baby was unexpectedly born 2 months premature (we came here when I was 6.5 months pregnant and were planning to leave in 2-3 weeks). We ended up spending a month in NICU and did not feel comfortable traveling with a preemie. I sadly ended up overstaying the ESTA by 3 weeks because, for whatever reason, USCIS did not get our package in time (perhaps the lawyer submitted it later than she told us). The GC was approved and towards the end of this year I'm supposed to do the ROC. We have had a couple of happy years here by now but are considering moving back to Europe for several reasons. Mainly, I have a good career waiting for me (my maternity leave is about to end), and I feel like my child would benefit from attending a daycare and school there. My husband works remotely, and there is a high chance that his employer would allow him to work from EU (he is waiting for an answer). 

We do, however, want to retain my ability to visit the US again and perhaps one day move back here for good. So my questions:

• If I were to officially surrender my GC, would I be able to get a B visa in the future (I suspect ESTA is gone forever because of AOS?)? Or is that a very slim chance?
• If I were to officially surrender mg GC, could we in the future apply for a spousal visa? Would the fact that I did AOS from ESTA cast any shadow on that? 
  
  Thank you
   

[OldUser 10,062]

14 minutes ago, mickeyvickey said:

 

• If I were to officially surrender my GC, would I be able to get a B visa in the future (I suspect ESTA is gone forever because of AOS?)? Or is that a very slim chance?

Maybe. There's never guarantees. US citizen kid and spouse are ties to the US.

 

15 minutes ago, mickeyvickey said:

 

• If I were to officially surrender mg GC, could we in the future apply for a spousal visa? Would the fact that I did AOS from ESTA cast any shadow on that? 
   

Yes, you can apply for spousal visa in the future.

[Ontarkie 14,951]

~~Moved to General Immigration Discussion, from AOS from W, S and Tourist Visas. - The OP is asking about issues if she gives up her GC after an overstay.~~

[Boiler 47,533]

You said you overstayed the VWP before filing to adjust 

 

you can certainly apply for a B

[mickeyvickey 1]

Quote

1 hour ago, Boiler said:

You said you overstayed the VWP before filing to adjust 

 

you can certainly apply for a B

 

Thank you for responding. It will be likely not approved though right? Because of the overstay. 

[Boiler 47,533]

Depends I don’t know your details.

[OldUser 10,062]

22 minutes ago, mickeyvickey said:

Thank you for responding. It will be likely not approved though right? Because of the overstay. 

Nobody can guarantee or predict visitor visa application outcome.

The risk is always there.

Have you considered naturalizing in the US and then going back to the Europe?

Edited Monday at 08:55 PM by OldUser

[mickeyvickey 1]

Quote

10 minutes ago, OldUser said:

Nobody can guarantee or predict visitor visa application outcome.

The risk is always there.

Have you considered naturalizing in the US and then going back to the Europe?

 

Thank you for responding. I have but it would mean I would lose my job which I like.

[Dashinka 25,909]

13 hours ago, mickeyvickey said:

Thank you for responding. I have but it would mean I would lose my job which I like.

Another option would be to file the I131 for a re-entry permit.  This allows you as an LPR to stay outside the US for up to two years, that way you can see if you want to stay in your home country, and if after a year or so you decide you do not want to come back to the US on a permanent basis, file the I407, give up the GC, and try for a B2.  The B2 might be tough with an overstay on your record, but it is not inevitable that it will be denied.

[OldUser 10,062]

3 hours ago, Dashinka said:

Another option would be to file the I131 for a re-entry permit.  This allows you as an LPR to stay outside the US for up to two years, that way you can see if you want to stay in your home country, and if after a year or so you decide you do not want to come back to the US on a permanent basis, file the I407, give up the GC, and try for a B2.  The B2 might be tough with an overstay on your record, but it is not inevitable that it will be denied.

OP also has ROC, which is complicated when living outside the US

[Dashinka 25,909]

52 minutes ago, OldUser said:

OP also has ROC, which is complicated when living outside the US

ROC is taking two years or more on average right now, so as long as the OP files properly and doesn't leave until the biometrics are completed or re-used from the AOS, and they are able to have someone track their mail, it can be worked out.

 

[OldUser 10,062]

3 minutes ago, Dashinka said:

ROC is taking two years or more on average right now, so as long as the OP files properly and doesn't leave until the biometrics are completed or re-used from the AOS, and they are able to have someone track their mail, it can be worked out.

 

But can you effectively remove conditions living out of the US? Isn't one of the conditions living in the US? I have knowledge gap in this area.

[Dashinka 25,909]

2 hours ago, OldUser said:

But can you effectively remove conditions living out of the US? Isn't one of the conditions living in the US? I have knowledge gap in this area.

To the best of my knowledge, there is no requirement to stay in the US for the processing of the ROC.  The I751 has to be sent to a US address, and of course they would need to deal with biometrics if required, and come back for an interview if necessary.  That being said, I only suggested it as an option if the OP isn't certain with a permanent relocation outside the US.