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-   -   Re-Entry Despite Visa Waiver Overstay Years Ago? (http://britishexpats.com/forum/us-immigration-citizenship-visas-34/re-entry-despite-visa-waiver-overstay-years-ago-559160/)

uk_traveller Sep 3rd 2008 10:48 am

Re-Entry Despite Visa Waiver Overstay Years Ago?
 
Yesterday a friend shared their predicament and I thought I'd see what the general reaction is here, where people are perhaps able to give a slightly more informed response.

Basically, my friend is looking to travel to America for a ten day holiday later this year. The only problem is, she visited in 2003 and through youth, naivety and - as I told her - stupidity, ended up overstaying her VisaWaiver by over a year. She returned to the UK in early 2005. She asked me if she'd face any problems in gaining re-entry to the US.

I told her there was a significant chance she would. However, she informed me that she didn't hand in her I-94 form when she left, and has since changed her passport (and actually managed to leave on a passport that had been previously cancelled and was officially 'inactive'). My response was that the risk remains, but it's up to her whether to inform the US Embassy in the UK, and try (and probably fail) to get a visa, or to fly over and 'risk it' at immigration (making sure she carries as many verifiable links back to the UK as proof she poses no risk).

What is the general consensus on her position? I've read that there's a three year ban, which she would have served since leaving over three years ago, and a ten year ban which obviously she wouldn't. I've also read that if previous offenders, particularly those from years ago and from a 'friendly nation' such as the UK, can prove (through return tickets, perhaps tenancy agreements or job contracts or whatever) that they intend on returning after a brief visit, that the immigration officer (or the appeal officer) has the discretion to 'parole entry' into the USA.

Whether she applies for a visa in the UK and gets denied, or turns up and is denied entry, the result is the same: she's not getting in. The only difference is in the first scenario, she's implicated herself, and in the second, there's a slim chance she'd get through, given the circumstances. I don't think she has the I-94 anymore, either.

I advised her to go and hope for the best, bringing with her as much evidence of ties to the UK and intention to return as possible.....

Obviously the internet is rife with preachers who love to leap onto their soapbox and preach the law to people, but I'm hoping British Expats will provide a more realistic response that I can pass on. Thanks in advance :)

dahlia Sep 3rd 2008 11:38 am

Re: Re-Entry Despite Visa Waiver Overstay Years Ago?
 
Quote:

Originally Posted by uk_traveller (Post 6743425)
Yesterday a friend shared their predicament and I thought I'd see what the general reaction is here, where people are perhaps able to give a slightly more informed response.

Basically, my friend is looking to travel to America for a ten day holiday later this year. The only problem is, she visited in 2003 and through youth, naivety and - as I told her - stupidity, ended up overstaying her VisaWaiver by over a year. She returned to the UK in early 2005. She asked me if she'd face any problems in gaining re-entry to the US.

I told her there was a significant chance she would. However, she informed me that she didn't hand in her I-94 form when she left, and has since changed her passport (and actually managed to leave on a passport that had been previously cancelled and was officially 'inactive'). My response was that the risk remains, but it's up to her whether to inform the US Embassy in the UK, and try (and probably fail) to get a visa, or to fly over and 'risk it' at immigration (making sure she carries as many verifiable links back to the UK as proof she poses no risk).

What is the general consensus on her position? I've read that there's a three year ban, which she would have served since leaving over three years ago, and a ten year ban which obviously she wouldn't. I've also read that if previous offenders, particularly those from years ago and from a 'friendly nation' such as the UK, can prove (through return tickets, perhaps tenancy agreements or job contracts or whatever) that they intend on returning after a brief visit, that the immigration officer (or the appeal officer) has the discretion to 'parole entry' into the USA.

Whether she applies for a visa in the UK and gets denied, or turns up and is denied entry, the result is the same: she's not getting in. The only difference is in the first scenario, she's implicated herself, and in the second, there's a slim chance she'd get through, given the circumstances. I don't think she has the I-94 anymore, either.

I advised her to go and hope for the best, bringing with her as much evidence of ties to the UK and intention to return as possible.....

Obviously the internet is rife with preachers who love to leap onto their soapbox and preach the law to people, but I'm hoping British Expats will provide a more realistic response that I can pass on. Thanks in advance :)

You seem to know quite a bit about this subject already and you are right that she probably would be refused a visa, which would be on her record and almost certainly prohibiting her from the US for who knows how long. As far as I know, if your friend didn't hand in her 1-94 then they have no record of when she left, especially as she got a new passport, In light of what I know now I would recommend that she 'goes for it' and, as you suggested, takes along things to tie her to UK, but not to flaunt them like she knows they're expected, and hope she gets a 'nice' POE officer. But forget the 'friendly nation' bit, that doesn't apply to US immigration officials. Good Luck:)

Marocco Sep 3rd 2008 11:55 am

Re: Re-Entry Despite Visa Waiver Overstay Years Ago?
 
Your friend has a ten year ban, due to overstaying on the VWP for more than a year. She can apply for a tourist visa once the ban is up, but it won't be easy for her to obtain it. If she flies over she will most likely be detained and sent back to the UK with the first available flight.

My advice to your friend would be to contact the US Embassy and provide evidence that she returned to the UK in 2005, or at least let them know that she is in the UK now. In 2015 the burden of proof will be on her to show that she left the US ten years earlier. She may also wish to have a consultation with a US immigration lawyer: www.aila.org.

Duncan Roberts Sep 3rd 2008 12:16 pm

Re: Re-Entry Despite Visa Waiver Overstay Years Ago?
 
As far as USCIS is concerned, she never left so has almost a 5 year overstay. I would not even think about planning a holiday any time soon until I'd gone to an immigration lawyer to get things straightened out and find out when she can next visit.

dahlia Sep 3rd 2008 12:33 pm

Re: Re-Entry Despite Visa Waiver Overstay Years Ago?
 
Yeah right, this all sounds very law abiding and proper. however, my friend overstayed by five months, went 'by the book' believing that if he 'fessed up' and went through the proper channels that all would be well. Well he did and it wasnt and now he cannot go to the US until God only knows when (and he aint tellin). Hence my previous post. And BTW yes they can suppose your friend has been there for the last five years but I very much doubt it.

uk_traveller Sep 3rd 2008 12:41 pm

Re: Re-Entry Despite Visa Waiver Overstay Years Ago?
 
Thanks for these replies... I have to say that after researching this pretty extensively, there are two point of view: that my friend is banned for ten years and has little chance of getting over there again after that. The second is that she shouldn't tell them as she'd basically be alerting them to a problem that may have otherwise escaped them, and go anyway, in the knowledge that the worst case sceanrio would be what would have happened if she talked to the embassy in the first place (aside from the time spent going there only to come straight back again).

The second kind of response comes from people who've done it, the first - with all due respect - from people who haven't but quite like telling people what they can't do.

I concede that being from the UK will make precious little difference, but the only shot she has of getting in is to go and find out; not to lie if asked, but to turn up and see what happens.

dahlia Sep 3rd 2008 12:49 pm

Re: Re-Entry Despite Visa Waiver Overstay Years Ago?
 
Quote:

Originally Posted by uk_traveller (Post 6743822)
Thanks for these replies... I have to say that after researching this pretty extensively, there are two point of view: that my friend is banned for ten years and has little chance of getting over there again after that. The second is that she shouldn't tell them as she'd basically be alerting them to a problem that may have otherwise escaped them, and go anyway, in the knowledge that the worst case sceanrio would be what would have happened if she talked to the embassy in the first place (aside from the time spent going there only to come straight back again).

The second kind of response comes from people who've done it, the first - with all due respect - from people who haven't but quite like telling people what they can't do.

I concede that being from the UK will make precious little difference, but the only shot she has of getting in is to go and find out; not to lie if asked, but to turn up and see what happens.

Exactly.;) Best of Luck to your friend.

Marocco Sep 3rd 2008 1:14 pm

Re: Re-Entry Despite Visa Waiver Overstay Years Ago?
 
Quote:

Originally Posted by dahlia (Post 6743581)
You seem to know quite a bit about this subject already and you are right that she probably would be refused a visa, which would be on her record and almost certainly prohibiting her from the US for who knows how long. As far as I know, if your friend didn't hand in her 1-94 then they have no record of when she left, especially as she got a new passport,

A new passport isn't going to make any difference. Her previous overstay is going to show up on the POE officer's computer anyway, unless she changed her name or date of birth (and probably even if she changes her name).

Quote:

Originally Posted by dahlia (Post 6743581)
Yeah right, this all sounds very law abiding and proper. however, my friend overstayed by five months, went 'by the book' believing that if he 'fessed up' and went through the proper channels that all would be well. Well he did and it wasnt and now he cannot go to the US until God only knows when (and he aint tellin).

That's right: overstaying means you may never go back to the US as a tourist, since you need a visa which is very difficult to get in that situation. It doesn't follow from this that breaking the law is the answer. That can get you into an even bigger mess.

MsElui Sep 3rd 2008 1:20 pm

Re: Re-Entry Despite Visa Waiver Overstay Years Ago?
 
Quote:

Originally Posted by uk_traveller
I concede that being from the UK will make precious little difference, but the only shot she has of getting in is to go and find out; not to lie if asked, but to turn up and see what happens.

True - but an expensive way to find out after buying plane tickets and booking a holiday (and possibly quite unpleasant having a secondary inspection, being detained and deported).


and the bit about them assuming she was still there = Id say that was quite true and any onus would be on her to prove she did return when she says she did. So I would accidentally include some evidence of her being back in the uk as early as possible - so if they do catch her and ban her - its the lesser one if she can get it?

BritishGuy36 Sep 3rd 2008 1:27 pm

Re: Re-Entry Despite Visa Waiver Overstay Years Ago?
 
Quote:

Originally Posted by uk_traveller (Post 6743822)
there are two point of view: that my friend is banned for ten years and has little chance of getting over there again after that. The second is that she shouldn't tell them as she'd basically be alerting them to a problem that may have otherwise escaped them, and go anyway, in the knowledge that the worst case sceanrio would be what would have happened if she talked to the embassy in the first place (aside from the time spent going there only to come straight back again).

The second kind of response comes from people who've done it, the first - with all due respect - from people who haven't but quite like telling people what they can't do.

Your friend has a 10-year ban.

There is no chance she will get in, they know she has overstayed and this will show on the border control agent's computer the instant her passport is swiped when she attempts to re-enter the US.

Changing passports is irrelevant, obviously activity on any old passport is linked to the new number. Otherwise, all anyone would need to do is get a new passport and avoid problems related to any previous activity.

Ties to the UK and a return ticket are no proof that she will not abuse the system again as she had a return ticket the last time and abused the system.

She can try and enter if she wants, but she'll be back on a plane post haste.

Marocco Sep 3rd 2008 1:34 pm

Re: Re-Entry Despite Visa Waiver Overstay Years Ago?
 
Quote:

Originally Posted by uk_traveller (Post 6743822)
The second kind of response comes from people who've done it,

Who would that be? No one here claims to have successfully done this.

Quote:

Originally Posted by MsElui (Post 6743822)
and the bit about them assuming she was still there = Id say that was quite true and any onus would be on her to prove she did return when she says she did. So I would accidentally include some evidence of her being back in the uk as early as possible - so if they do catch her and ban her - its the lesser one if she can get it?

It doesn't matter even if she does. She has a ten year ban which hasn't expired yet.

Ray Sep 3rd 2008 1:48 pm

Re: Re-Entry Despite Visa Waiver Overstay Years Ago?
 
Quote:

Originally Posted by uk_traveller (Post 6743822)
Thanks for these replies... I have to say that after researching this pretty extensively, there are two point of view: that my friend is banned for ten years and has little chance of getting over there again after that. The second is that she shouldn't tell them as she'd basically be alerting them to a problem that may have otherwise escaped them, and go anyway, in the knowledge that the worst case sceanrio would be what would have happened if she talked to the embassy in the first place (aside from the time spent going there only to come straight back again).

The second kind of response comes from people who've done it, the first - with all due respect - from people who haven't but quite like telling people what they can't do.

I concede that being from the UK will make precious little difference, but the only shot she has of getting in is to go and find out; not to lie if asked, but to turn up and see what happens.

Yup ..you go for it ..whats the worse that can happen ...she spend a week in a cell with Mongo ...or you sail right through..

I say be adventurous ...test the system ...

uk_traveller Sep 3rd 2008 2:09 pm

Re: Re-Entry Despite Visa Waiver Overstay Years Ago?
 
BritishGuy36, How do you account for the tales of people who have overstayed and got in at a later point, then? Are they all lying in some kind of grand conspiracy against 'The System'? Of course not. The fact is that it's not a perfect system and if you do happen to have some abnormalities in your situation, there's a chance you'll 'slip through'.

Look, I can't speak for her, but I know she's not out to 'abuse the system', just to try and see if she gets back in, because a ten year ban for somebody who overstayed as a young adult and clearly poses no risk, plus can provide substantial evidence of her ties and intent to return to the UK, is absurdly draconian. And again, I've heard from people who've been in such a situation who have successfully attained entry to the States, but nobody who's preaching the rules who seems to be able to claim to have been deported... the difference is experience versus the soapbox. I know there will be many tales of folk who have been detained and sent back, but that simply doesn't account for 100% of re-entrants.

BritishGuy36 Sep 3rd 2008 2:22 pm

Re: Re-Entry Despite Visa Waiver Overstay Years Ago?
 
Border Control won't be interested in her claims of ties to the UK or promises of not abusing the system. She has previously demonstrated her willingness to abuse the system and that is all they will see - her age or disposition at the time is not relevant, as far as they are concerned.

I don't know of any such "stories" where people have got away with this, I would be dubious about these tales at best and as Morocco says there are no such tales on this forum.

Duncan Roberts Sep 3rd 2008 2:28 pm

Re: Re-Entry Despite Visa Waiver Overstay Years Ago?
 
Quote:

Originally Posted by uk_traveller (Post 6744078)
I know she's not out to 'abuse the system'

Quote:

Originally Posted by uk_traveller (Post 6744078)
just to try and see if she gets back in

How does that work then? :confused:


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