HELP! Change of status abandoned - can i travel on ESTA?

#1
Hey there! I have a question about traveling to the US after my cos got abandoned.

I was an au pair from December 2016 until March 7th 2018 in the US, so I was on the J1-visa. I was applying for a B2-visa to travel the US for a few months. So I sent in my change of status application before my J1-visa got expired. My J1-visa was valid until September this year but I quit the Au pair job and my last day on the J1-visa was March 7th. I was staying in the US until beginning of April, I had to leave the US due a family emergency but my CoS was still pending. Since I left the US while the case was still pending my application for COS got abandoned and denied. I want to travel back to the US for 2 weeks end of this year and I applied for an ESTA which got approved. My question is, if I could get any troubles at the border security and if the chance to get denied the entry is higher than usual?

Thank you!
 

SusieQQQ

Well-Known Member
#2
When you applied for your esta, was there a question asking if you have ever overstayed in the US? If so how did you answer it?

Note that while you can stay in the US while a CoS is pending, if it’s denied then your overstay is counted as beginning on the first day after your original authorized stay, in your case March 8. (With hindsight you should have withdrawn the CoS application rather than just abandoning it.) If you admitted this overstay on your ESTA and still got approved then you should be ok to enter (nothing is guaranteed) but in your case I would take proof you left before the CoS decision was made. If you answered incorrectly on the ESTA then that’s another story.
 

newacct

Well-Known Member
#3
Note that while you can stay in the US while a CoS is pending, if it’s denied then your overstay is counted as beginning on the first day after your original authorized stay, in your case March 8. (With hindsight you should have withdrawn the CoS application rather than just abandoning it.) If you admitted this overstay on your ESTA and still got approved then you should be ok to enter (nothing is guaranteed) but in your case I would take proof you left before the CoS decision was made. If you answered incorrectly on the ESTA then that’s another story.
There is no such thing as "overstay". "Unlawful presence" does not accrue while a timely-filed non-frivolous COS is pending, even if it is abandoned or denied. If the person is in the US on the date of the denial, "unlawful presence" only starts to accrue the day after the denial. If the person leaves the US while their COS is pending, they do not accrue any "unlawful presence".
 

SusieQQQ

Well-Known Member
#4
There is no such thing as "overstay". "Unlawful presence" does not accrue while a timely-filed non-frivolous COS is pending, even if it is abandoned or denied. If the person is in the US on the date of the denial, "unlawful presence" only starts to accrue the day after the denial. If the person leaves the US while their COS is pending, they do not accrue any "unlawful presence".
Apologies for the misuse of the word then. The official uscis terminology is “out of status”.
If we deny your change of status application, you will be considered to have been “out of status” for the entire period following the expiration of your original nonimmigrant status and will be required to depart from the U.S. immediately upon notification of such denial of status.
https://www.uscis.gov/sites/default...erence Guide/Nonimmigrant_Services.pdf#page13

What would you say the correct answer to the ESTA question “Have you ever stayed in the United States longer than the admission period granted to you by the U.S. government?” should be for this poster then?
 
#5
I got the letter with the "abandonement" or "denial" in June, two motnhs after I departed from the US. Since it was an emergency and I had to leave asap I didn't really think about withdrawing the CoS because I knew it will get abandoned.

When I filled out the ESTA application I was answering the question regarding the overstay with "no".
 
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