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In February of 2016, I visited the United States. I entered Puerto Rico under the VWP/ESTA. On March 24, 2016 I got married; my wife is US citizen. We started the process for my permanent residency. Four months later, we were notified that the immigration service had denied the the application. Since the 90 days allowed by the VWP had expired, I left the country in September 2016.

Now, after 6 months outside the US, can I go back under the same VWP/ESTA conditions? Is there another way to do it? When I left the US, the permanent residence procedure was still pending.

Giorgio
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Sotiris Beretsos
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    Denied the permission for what? – Zach Lipton Jan 23 '17 at 17:35
  • If you applied for adjustment of status (AOS) then you will have abandoned that application by leaving US territory. If that is the case, and if you are still interested in becoming a permanent resident, you will need to file a new application. Since you are outside the US, you would apply for an immigrant visa at a US consulate, though you may be able to enter under the VWP and apply again for AOS. If you need help with that, you should ask at [Expatriates.SE]. If, however, you want to visit the US temporarily, your question should remain here. Please clarify. – phoog Jan 23 '17 at 17:50
  • @pnuts in addition to the refusal of permanent residency, there is also a possible overstay (if the AOS application was denied in July, for example, but Sotiris didn't leave until September, he may be considered to have overstayed, which may affect eligibility for the VWP. I say "may" because I don't know the rules off the top of my head and don't have time to look them up right now. – phoog Jan 23 '17 at 17:55
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    @pnuts aha, if the Q is out of order, then "after 4 months" could mean now, in January, 4 months after the September departure. If that's true then it may just be that USCIS recognized the AOS application as having been abandoned because it came to their attention that Sotiris had left the US. That would be a very different situation indeed. – phoog Jan 23 '17 at 18:04
  • The original version of this question, before Dorothy's edits, said "we was started the proccess for permanent residency .After four months the last notice from the immigration service was denied the permission." But it also said "The Permanent residensy prosedure was penting [pending?]." Which makes it very unclear what permission was denied. We can speculate, but I'm not sure the point. – Zach Lipton Jan 23 '17 at 18:04
  • And he may have been hit with scrutiny under the guideline in which a marriage is presumed to be fraudulent if it occurs within 30 days of when a person enters the U.S. A Would it be safer to apply for a visa? Does he risk being denied entry using VWP/ESTA, especially if he shows as an overstay? – Giorgio Jan 23 '17 at 18:05
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    In any case, I'd personally find a qualified immigration lawyer to advise you before you make an even bigger mess out of things. This is your entire future in the US at stake, and that's not really something you want to screw up. – Zach Lipton Jan 23 '17 at 18:06
  • @Dorothy: That is a Department of State policy and doesn't apply to USCIS, which adjudicates Adjustment of Status. Furthermore, several BIA precedents have said that Adjustment of Status cannot be denied for the Immediate Relative category (spouse, under-21 unmarried child, or parent of US citizen) for the reason of immigrant intent alone. – user102008 Jan 23 '17 at 18:40

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Since you overstayed the 90 days you were admitted for when you entered on VWP, you are not eligible to use the VWP anymore. You will have to apply for a visa to go to the United States again. Since you intend to go to the US to immigrate, you will not be able to go on a visitor visa or most other kinds of nonimmigrant visas. Your US-citizen spouse needs to petition you to immigrate and you will do consular processing in your home country for an immigrant visa.

user102008
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