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 :)

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

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:)

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.

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.

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.

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.

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

Exactly.;) Best of Luck to your friend.

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

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).

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.

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

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?

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

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.

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

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

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

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

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 ...

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.

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.

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

How does that work then? :confused:

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

Now if it was the Swiss government, I'd agree. I suspect it will depend on whether in 2003, the US had machine readable equipment for passports and VWPs for all POEs, the central server processing was up and running, and the UK passport as well as the VWPs were machine readable at that time. If that was the case, then she will probably be caught.

However, if that was not the case, it is unlikely that all the information for every person entering and leaving the US would have been entered into a centralized database. Even if some POEs had the equipment but other POEs did not and the information was not manually entered for the POEs that did not have the equipment, than none of the information collected at that time could be relied on to be accurate.

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

C'mon! I'm not convinced of the perfection of CBP.

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

As long as she knows that if she doesn't get in she'll have wasted thousands of dollars, not to mention the unpleasant experience of being detained by immigration.

I have heard of no one who was able to "slip through" through US immigration while subject to a ban. On the other hand there are several stories of people who have been denied entry under the VWP for very old overstays, even when they weren't subject to a ban. See here and here for what happened to Irish actor Ruaidhri Conroy. He tried to enter the US under the VWP in 2006 after a previous overstay in 1998. He was denied entry and placed in a holding cell for 22 hours before being put on a flight back to Ireland. He had overstayed by only two days and didn't have a ban.

Again - whose experience?

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

But you're not banned until you attempt to re-enter, and only then if everything's working properly. As for 'what stories', type the right words into google and read up. If for whatever reason they don't detect you, you're not banned, pure and simple. How's that 'abusing the system'? It's plainly not.

I've advised her to go for it, but be aware it has a good chance of not working, meaning she won't get in and will be sent straight home. That said, I'm confident her leaving on a cancelled passport and coming back in on a new one, will put her in good stead.

I'll certainly report back on what happened, just for the record.

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

Some Facts then..

This was post 9-11 so her entry/exit change of passport etc will be logged and she will be denied. You will 99% find I suspect that overstayers got away with it as pre-9-11 overstays where "Didn't hand I-94" in sometimes worked. Now, all airlines report all passengers leaving/arriving into the USA. The POE / secondary processing can access those lists for sure.

The POE agent, since the TB scare from Candaa has NO discretion. As I have reported before, my 20 year old son, a US Citizen of 5 years is called for secondary processing on EVERY re-entry to the USA simply because they have no record that he returned his green card ((they lost his green card). Sure POE is apologetic and frustrated they have to do this and as a USC myself, when I travel with my son, I now show them how pissed I am BUT they just shrug, as frustrated as I they can't bend the rules even for this...

The POE has NO discretion. All "errors"/"Anomalies"/"orange flags" are sent to secondary processing.

She will be sent back so get a cheap flight and I hope she likes Airline food.

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

Pretty much easier to fill in the Esta form and see what it says ..

http://www.cbp.gov/xp/cgov/travel/id_visa/esta/

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

Considering that she has abused the system once already, this is a pretty naive comment!


She has already disregarded US immigration law by overstaying once. I suggest she *is* a risk... since she clearly has no respect for the laws of a foreign country.


This is exactly what the US immigration is.

Ian

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

Another wrong assumption. The ban kicks in the moment you leave the US. You only find out about it when you attempt to re-enter. If, as in your friend's case, there is no record of having left, USCIS can make any rationalization at all about when exactly she left... it's their sandbox after all. The onus is on your friend to prove when she left, not on USCIS to demonstrate she didn't.

Ian

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

Strikes me that despite requesting a "more realistic response that I can pass on" what you really wanted was agreement with your already advised course of action "I advised her to go and hope for the best"

Once her passport is scanned the POE will have available to them previous entries and exits ( yes new passport or not all the information from her old one will have been 'transfered' over) So what they are going to see is an entry on the VWP 5 years ago and no exit. She will be taken straight to secondary for questioning. Once in secondary her prior overstay will be established. There is / will be NO discretionary judgment, the regulations are quite clear so in that respect she could carry with her a personal letter from the Queen vouching for her return and it wouldn't matter a fiddlers pluck - she will NOT be allowed to enter and will be detained until arrangements are made for her removal and return flight back to the UK.

Bottom line if your friend wants to spend xxx amount of pounds on a flight out here to be sent back on the next available flight ( btw, most airlines carry a standard 'any passenger denied entry by immigration or other authority all repatriation costs are to be born by the passenger' clause so she will have the extra cost of the flight back home to pay for as well) then just tell her to come right along! If that's the chance she wants to take then so be it - I'm sure after numerous hours in secondary, the loss of all that money and probably waving goodbye to any chance of visiting the USA in the foreseeable future - she will probably appreciate the advice you gave her :)

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

Everyone leaving the US by air is supposed to be tracked via the I-94 or I94W that is handed to the airline before departure. The airlines forward the forms to a USCIS location somewhere where they are supposed to be entered into a database. As you can imagine this is not a perfect system however I believe that after 9-11 there were significant efforts made to improve it over the years.

Regarding the OP's question, this is one of those 'do you feel lucky' dilemnas. The fact is that USCIS and CBP have an imperfect record keeping system, so your friend may get lucky. On the other hand, bear in mind if she travels on the Visa Waiver scheme she must sign a form (ie make a statement ) that she has not violated a previous visa. In other words she must actually tell a lie on the form in order to be admitted. If this lie is found out it could result in a lifetime ban. Also, if she is detained at POE as a consequence of this they will most likely lock her up in a cell until she can get a flight home, which will also cost her a large amount of money. Does she really want to go through that experience ?

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

Does anyone really believe that there is a 'friend'? ;)

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

Does anyone care ...

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

I don't know... I like these kind of threads, they brighten up my very dull life. :D

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

Well thanks for this. I was forewarned of the disproportionately hostile nature of some who like to pretend to be judge and jury on BritishExpats before I posted here, but considering that this has been a helpful exercise. Thanks again. :)

PS If she does go across, I'll let you know what happened. I hope she proves some of you wrong!

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

try the ESTA

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

Will you take all the flak and expense if it goes tits up? By the way, have you really read what the visa waiver you sign actually says? Here are a couple of pertinent bits of it.

PS. I really hope she doesn't prove us wrong because it's a slap in the face to everyone who do things legally when people think they are above the law and can do whatever they want. Which she is doing regardless of what you think.

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

I hope she gets caught.

People who seem to think it's fine to ignore the laws of another country, and stay there illegally just because they want to, and then get away with it again... not me.

I just wish you could be tossed in jail alongside her to share the experience.

I have lots of sympathy for people who've made mistakes, learned from them, and work within the system. Our system, or another country's. But those who think breaking the law is fine, repeatedly...

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

we can only give our opinions. She chose to do the deed a while ago and now must face the consequences. If she doesnt like our opinions thats fine - but they were asked for and honestly given. Id hope the integrity of the forum (ie advising anyone to stick within the law rather than bend rules) was a better thing than just saying ' sure - go for it - no worries - especially when its not us stuck in secondary or being deported etc.

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

:DHeh, well that brought a smile to my face, thanks! :D

She was young, she made a mistake, she's deliberately not gone back, even missing her brother's (I think) wedding and now she wants a ten day break, and you want her and her friends thrown in jail?!

Only in America :D :D

MsElui, thanks for your more rational response. I appreciate the responses, and while I'm bemused by the aggression from some, it's all helpful so thanks.

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

And I really hope she does because it would seem like even when you do things 'in their proper order' they dont work out with these people anyway,I'm sure that she would rather go the official route but the cold hard facts are that she almost certainly will NOT get in again EVER. so Good Luck to her and anybody else who 'bucks the system' until they revise their Draconian ways. Anyway if she clears immigration at Shannon or Dublin she need not worry about spending a night in the cells or extra expense of being returned;)

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

The ban already exists. An overstay of more than a year is a 10 year bar. It's just a matter of if they recognize that the ban is in place or not when she gets to the border.

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

You more than her frankly - advising her to break the law.

Perhaps you don't realise - she probably WILL be thrown in jail. That's where she will likely be detained, before she is deported. Did you think they'll just let her stroll around the airport and go shopping until she flies home? Most likely the next flight will be the next morning.

She made a mistake - fine. She has to pay the price of it. She wants a ten day break... well I want a million dollars. She can take a break anywhere she likes - except the country she's banned from for breaking the law.

If she can find a way to come back legally - then I welcome her. Not until then.

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

uk_traveller, I don't mind what you recommend to people. But I do wonder why you bothered asking if, regardless of what you were told, you're still going to recommend to try anyway.

If I decide to drive at 40mph in a 30 limit on the way home today, that's my choice. I don't go on forums asking "do ya fink it'll be alright?".

If your friend wants to risk deportation, that's her choice. But don't expect people on here to say that's great, no more than I should expect people to tell me driving 10mph over the speed limit is a fantastic idea.

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

Without telling us when she's traveling or through which POE (I'm sure you wouldn't), when will you be able to let us know, give or take a week? So we can keep an eye out for your post.

All the best...

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

You're saying her attempting to gain entry has a 'good chance' of NOT working, but you are 'confident' that the cancelled passport business will save her ? I'm confused here.

FWIW I am fairly certain that the fact that she has a new passport will not, in and of itself, be a way to hide her previous overstay. If it was that easy everyone who had a ban could just 'lose' their passport and side step the ban. I'll grant you that the US Dept of Homeland Security is a creaky and inefficient bureaucracy in many ways, but they are not quite that dumb. I strongly suspect that they match people uniquely in their system by using name, date of birth and place of birth together, rather than the passport number. The fact that all three id's appear in one's passport makes it much harder to get around the system by changing one of them. Have you ever wondered why you have to enter your place of birth on every visa application, regardless of the country ?

If your friend does go ahead she might want to arrange to arrive on an early flight to minimize the very real possibility she will be put in a holding cell for at least one night to await the flight home. Also she should expect, if caught, to be subjected to some fairly serious questioning by CBP. One year overstay + immigration fraud is not a very nice combination as far as they are concerned.