rhodes89

Hello everyone- I was recently denied entry to the USA under the VWP because I overstayed on a B2 visa back in 2009. The length of my overstay was less than 180 days. I thought that because it didn't trigger an automatic ban then I would still be able to re-enter (unfortunately this was not the case).

I was denied and sent on the next plane back to the UK under the 212 a 7 A i I.

I was hoping to app,y for entry to the US on a H1B in the near future but I now fear I may not be eligible.

Anyone have any good advice on what I should do.

Many thanks

Noorah101

Yes, wait until you are able to apply via the H1B, and then do so. H1B is totally different than a visitor's visa. Being turned away on the VWP and having a no-ban overstay on a previous B visa probably won't hurt your chances of an H1B. Different purpose, different visa.

In the meantime, don't visit the USA.

Rene

Bob

Didn't you file ESTA and get a fail on that before your trip?

rhodes89

Yes I did apply for a ESTA and it got approved. This is why I was surprised to be denied entry. However, it does state on the ESTA approval that the final decision lies with the immigration officer.

Rete

Why were you entering on the VWP when you had a B-2 visa which you used previously?

rhodes89

I attempted to enter through the VWP because I overstayed on my B2 visa which caused this to become void.

scrubbedexpat099

That might have been a clue.

crg

I agree with Noorah. A VWP refusal is not a removal order. By itself, it doesn't prevent you from getting an H1B.

The prior overstay on the B-2 didn't automatically prevent you from using the VWP either. A prior VWP overstay makes someone inelgible, but a B-2 overstay would not always have the same impact. You're correct that the B-2 is void even after a one day overstay. If you were caught attempting to use that visa, they could have barred you for 5 years on the spot.

They simply decided that you were a bad risk because of your previous violation. They essentially have the discretion to deny entry to anyone they feel like on the VWP.

JCraigFong

Are you certain that you were denied based on §212(a)(7)(A)(i)(I)? Strange that they should deny you entry with a prior overstay on this basis. §212(a)(7)(A)(i)(I) is usually for immigrants who have inappropriate documentation. §212(a)(7)(B)(i)(II) would have made a little more sense.

Ah, the mysteries that come out of Ports of Entry.

Moving forward, AmEmb-London will probably want a decent explanation of your prior overstay on the B visa before issuing the H-1. You should be prepared to reiterate -- and re-document -- this explanation at the POE when you seek admission to the USA.

meauxna

I'm glad that puzzled you too; I was starting to think I'd lost my google-fu.

crg

It actually makes perfect sense. Due to the prior violation, they likely doubted his claim that he was a bona fide nonimmigrant. Calling him a 7B would stipulate that he fits a nonimmigrant category but is inadmissible for a documentary deficiency and not make sense. He has a valid passport so 7B1 (no valid passport) is out. He is eligible to seek entry on the VWP because he has never violated the VWP and none of the ESTA questions ask about overstays or cover what he did so 7B2 (no valid visa, or the wrong visa) is out. Violations of status after entering on a visa don't automatically make someone ineligible for the VWP. A violation of the VWP would be a whole different situation.

7A1 is correct because they are saying he failed to overcome the presumption of immigrant intent per 214(b) INA.

"every alien (other than a nonimmigrant described in subparagraph (l) or (v) of section 101(a)(15), and other than a nonimmigrant described in any provision of section 101(a)(15)(H)(i) except subclause (b1) of such section) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15)."

They determined that he was an immigrant. They essentially said that based on his prior behavior (which the OP hasn't disclosed and may have included unauthorized employment) he failed to overcome the presumption that he is seeking entry to the US to reside or do something else that isn't covered by B1/B2/WT/WB so he needs an immigrant visa and doesn't have one. They didn't deny him for what he did. They denied him because they weren't convinced he wouldn't break the rules again.

So yes, he was deemed to be an immigrant with inappropriate documentation. He didn't have an immigrant visa or a green card.

They likely couldn't bar him solely because of the overstay because it was under six months so no grounds applied to support a bar. If they didn't call him a 7A1, barring another ground of inadmissibility, they should have admitted him.

dbj1000

I am genuinely curious to know what a "decent explanation" is for an overstay. Do you find that many of your clients have a decent explanation?

scrubbedexpat099

Coma?

meauxna

Thanks for the reply; I clearly need to read with better attention.

JCraigFong

Meauxna: Your puzzlement about this is well-founded. §212(a)(7)(A)(i)(I) is for immigrants who lack appropriate documentation, such as missing birth certificates, missing labor certs, or other document irregularities. It is NOT for presumed immigrants who have failed to overcome §214(b).