Question regarding withdrawal

[Khamatic]

As the title says, I have a question but I'm not sure where to ask. Little information. We're from the US(me) and France(my wife)

My wife and I may have to withdraw from the process because her mother is very sick and there is no one else to care for her, we haven't gotten her EAD yet or her travel document we've been waiting about 6 months there has been a few delays.. at this point we're just thinking about the future and how we'll be able to see each other... she came on an ESTA(VWP?) to visit me, I ended up proposing to her and ask her to never leave me. Her mother visited us a few months ago and even brought her cat from home, we ended up rescuing a cat here that was a stray and had cancer, a hernia, 2 tumors,and my mother in law ended up taking him home with her. it was amazing!

My question is will her ESTA(VWP?) overstay be pardoned if we withdraw? Or if we're denied for some reason (we shouldn't be). Also since we ARE married when she plans to come back to the states will she have to apply for a different VISA, so that we can restart the AOS process? Any advice will be helpful !

[Walbrzyszanka21]

As the title says, I have a question but I'm not sure where to ask. Little information. We're from the US(me) and France(my wife)

My wife and I may have to withdraw from the process because her mother is very sick and there is no one else to care for her, we haven't gotten her EAD yet or her travel document we've been waiting about 6 months there has been a few delays.. at this point we're just thinking about the future and how we'll be able to see each other... she came on an ESTA(VWP?) to visit me, I ended up proposing to her and ask her to never leave me. Her mother visited us a few months ago and even brought her cat from home, we ended up rescuing a cat here that was a stray and had cancer, a hernia, 2 tumors,and my mother in law ended up taking him home with her. it was amazing!

My question is will her ESTA(VWP?) overstay be pardoned if we withdraw? Or if we're denied for some reason (we shouldn't be). Also since we ARE married when she plans to come back to the states will she have to apply for a different VISA, so that we can restart the AOS process? Any advice will be helpful !

Have you considered contacting your congressman/woman? Have you tried expediting your case?

[newacct]

If her mother is really sick, she should try to expedite her AP over the phone or apply for an Emergency AP in person at an office. You can read about those two processes here.

It's not necessary to "withdraw" -- she would automatically abandon her AOS if she leaves without AP. But she should try her hardest to get an AP before she goes the route of abandoning AOS. But anyway, if she does leave without AP:

She would have accrued "unlawful presence" in the period of time after her I-94 expired and before she filed I-485 (if she filed I-485 before her I-94 expired then she would not have any "unlawful presence"). If she has accrued 180 days of "unlawful presence" and then leaves, she triggers a 3-year ban; if she has accrued 1 year of "unlawful presence" and then leaves, she triggers a 10-year ban.

If she manages to make it back to the US, she can do AOS again, but that is highly unlikely, because 1) she won't be able to use VWP anymore because she overstayed that so she will have to apply for a visa, and 2) they will not give her most types of nonimmigrant visa or let her in on most types of nonimmigrant visa if they suspect she intends to file AOS, and the fact that she has filed AOS once makes it very likely they will suspect that. So she will likely have to go through Consular Processing for an immigrant visa at a US consulate abroad; the process may take a year or so.

[Khamatic]

If her mother is really sick, she should try to expedite her AP over the phone or apply for an Emergency AP in person at an office. You can read about those two processes here.

It's not necessary to "withdraw" -- she would automatically abandon her AOS if she leaves without AP. But she should try her hardest to get an AP before she goes the route of abandoning AOS. But anyway, if she does leave without AP:

She would have accrued "unlawful presence" in the period of time after her I-94 expired and before she filed I-485 (if she filed I-485 before her I-94 expired then she would not have any "unlawful presence"). If she has accrued 180 days of "unlawful presence" and then leaves, she triggers a 3-year ban; if she has accrued 1 year of "unlawful presence" and then leaves, she triggers a 10-year ban.

If she manages to make it back to the US, she can do AOS again, but that is highly unlikely, because 1) she won't be able to use VWP anymore because she overstayed that so she will have to apply for a visa, and 2) they will not give her most types of nonimmigrant visa or let her in on most types of nonimmigrant visa if they suspect she intends to file AOS, and the fact that she has filed AOS once makes it very likely they will suspect that. So she will likely have to go through Consular Processing for an immigrant visa at a US consulate abroad; the process may take a year or so.

I was under the impression that if you file for AOS and regardless of acceptance or denial , you would be forgiven for any violation of visas, etc...? Am I wrong in this?

Right we tried to expedite and contacted our congress person, and every time we get a response of "you should get your response soon.. blah blah"

but applying for an emergency AP might be something we will have to do, I will look into that, thank you

- - - Updated - - -

Have you considered contacting your congressman/woman? Have you tried expediting your case?

Yes we have, and we got a response from USCIS and it was basically a "we're working as fast as we can" response.

[newacct]

I was under the impression that if you file for AOS and regardless of acceptance or denial , you would be forgiven for any violation of visas, etc...? Am I wrong in this?

No, there is no "forgiving". Being out of status is simply not relevant for AOS in the Immediate Relative category. But any "unlawful presence" accrued will still have been accrued. "Unlawful presence" by itself does not cause a ban, and thus does not affect AOS either; but leaving the US after accruing more than 180 days of "unlawful presence" does trigger a ban.

If she filed I-485 less than 180 days after her I-94 expired, then she wouldn't have to worry about triggering a ban upon leaving.

[Khamatic]

No, there is no "forgiving". Being out of status is simply not relevant for AOS in the Immediate Relative category. But any "unlawful presence" accrued will still have been accrued. "Unlawful presence" by itself does not cause a ban, and thus does not affect AOS either; but leaving the US after accruing more than 180 days of "unlawful presence" does trigger a ban.

If she filed I-485 less than 180 days after her I-94 expired, then she wouldn't have to worry about triggering a ban upon leaving.

I see! Well thank you so much for your help and assistance. Lets say the worse possible thing happens and she has to go back without AP, but she didnt accrue enough unlawful presence for a ban. They will probably not approve her for a non immigrant visa which is fine. We would have to go through the fiance visa process i'm assuming?

Again thanks so much for your responses I really appreciate them

[newacct]

I see! Well thank you so much for your help and assistance. Lets say the worse possible thing happens and she has to go back without AP, but she didnt accrue enough unlawful presence for a ban. They will probably not approve her for a non immigrant visa which is fine. We would have to go through the fiance visa process i'm assuming?

Again thanks so much for your responses I really appreciate them

If you are married, she is not your fiance. You have already petitioned her as your spouse. You would need to switch the petition from AOS to consular processing so that when it is approved she can do consular processing abroad for an immigrant visa.