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Adjustment of Status, came with a visa waiver, which already exceded 90 days.

Hollywood, FL |

I came here with a European passport. My father (US Citizen) filed an I 130 and an I 485 weeks after arriving (Arrived on April 5th, applications filed on April 20something - 90 days expired on July 4th). I recieved a letter from the National Benefits Center saying that my case will be delayed for 6 months. I don't want to wait 6 months and I want to return to my country as soon as possible. But I'm already 90+ days here while my Adjustment Of Status is still pending (Already took biometrics, SSN, Work Permit). I want to know if returning now to my country while AOS is pending will cause my Visa Waiver to be voided. And how can I do things so I can return again to the US without problems. Please, help me. I need to take decisions as soon as possible. Thank you

Attorney Answers 4


  1. Yes, you are no longer eligible to travel under ESTA. If you leave the US without first obtaining advance parole, you will no be able to return to the US until you are processed for an immigrant visa.

    The Court of Appeals for the Second Circuit has stated that immigration law is "a notoriously complex and constantly shifting area of law."

    You should retain an experienced immigration lawyer to review all the facts, advise you, and handle the case. You can find one through http://www.ailalawyer.com.

    J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.


  2. In a nutshell, this seems like a problem, so don't go. Your father 'should have filed' for advanced parole and work authorization for you. If you depart, then you abandon the process, get denied and may even age out. You will need to consular process which can take over a year.

    You will likely void your right to use the visa waiver program, since you will have demonstrated that you have immigrant intent. There may also be further complications with immigration visa processing. Seek an appointment with a competent immigration attorney before you do anything.

    This is general information, not legal advice, and does not create an attorney client relationship.


  3. You should file advanced parole before you return to your country.

    The information on this website is not intended to be legal advice.


  4. Generally speaking, under these facts you a) have a potential visa fraud issue because you filed for adjustment of status so quickly after your arrival; and b) the inability to ever return in the future using the visa waiver program due to the fact that you overstayed. You do, however, appear to be eligible for advance parole which would allow you to travel outside the U.S. and return without abandoning your application. Consult with an experienced immigration attorney who can review your case and advise you how best to proceed.

    While this answer is provided by a Florida Bar Certified Expert in Immigration and Nationality Law, it is for general information purposes only and an attorney/client relationship is neither intended nor created. You should seek out qualified counsel to review your case and provide you with advice specific to your situation. Call +1-561-478-5353 to schedule a consultation with Mr. Devore.

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