AOS application after overstaying?

H

Huddy56

New Member
My UK resident daughter married her US citizen husband December 2020 on ESTA visa waiver. She returned to UK in January before visa expired. She was going to apply for Green Card in UK but feels she may be able to apply for AOS when she visits her husband in May this year for 6 weeks again on ESTA. Everything I read seems to state that she would find it almost impossible to apply for AOS whilst in US on a tourist visa, as it would mean she had misrepresented her intentions. However, I have read quite a lot about the '90-day rule'. It seems to say that if you overstay your visa and then apply for AOS you have a very good chance of success. This seems bizarre to me but is it true? Thanks
in advance. Roger.
 
Such a short time between visits to a US spouse might lead CBP to suspect that she intends to stay and adjust status, and they would refuse her entry if so. Remember that she would have to be honest in answering questions to cbp, misrepresentation can actually be a problem. Also if she is refused entry on ESTA she will almost certainly lose her ESTA and ability to use the VWP, and it is really difficult to get a B visa once this has happened. So this can be a risky approach.

There are also a number of drawbacks to the AOS process especially if she is not happy to sit around for 6-8 months without employment authorization or being able to travel outside the US. Some people who go this approach do not realize the drawbacks so suggest she does her research properly.
 
Much appreciated. So would I be right in thinking she would be better applying in the UK through the consular process. Her US spouse could then submit the I-130 to start the ball rolling which would also prove to CBP that she intends to go through the formal application process in the UK?
 
Huddy56 said:
Much appreciated. So would I be right in thinking she would be better applying in the UK through the consular process. Her US spouse could then submit the I-130 to start the ball rolling which would also prove to CBP that she intends to go through the formal application process in the UK?
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She could also take proof of why she would return to the UK on each visit (employment letter, lease, etc) - they may ask to see this.
 
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