emprex

Hi
Just a quickie i hope!
Son (minor) and I overstayed VWP in USA due to domestic abuse from partner.

ESTA has been approved for us both, does this mean it is ok to go on VWP again?
thanks

ian-mstm

Sorry, but I believe you can never again use the VWP if you have previously violated the terms of the VWP.

Ian

emprex

i did believe that also, but the ICE investigator, said if ESTA was approved it is ok to travel, just answer questions honestly.
or to perhaps apply for B2 visa

crg

Hi,

How long was the overstay and when did you depart? Was satisfactory departure granted?

If you really overstayed, and an ICE investigator said that, he/she is incorrect. ICE also has zero authority over who is admitted under the VWP. There are no exceptions in the law for minors, domestic abuse, car accidents, comas, being in prison, etc. It's strictly a question of departing on time, or not departing on time.

Section 217 of the INA lists the requirements for VWP eligibility. The requirements include:

(7) 2aa/ NO PREVIOUS VIOLATION.-If the alien previously was admitted without a visa under this section, the alien must not have failed to comply with the conditions of any previous admission as such a nonimmigrant.

An overstay is a violation that would make you ineligible to use the VWP. They may not have figured it out via ESTA, but they get another shot at it when you get to the border. If you overstayed the VWP, you should apply for a visa.

emprex

It was 2 and a half years over, we were held against our will, and left of own accord through domestic violence shelter, no ICE involvement until i returned home then they had investigation for human trafficking, against ex.

crg

Hi,

From what you are telling me, you are barred from entering the US without a valid visa and an approved waiver for a period of 10 years from the date you departed following the overstay. The minor child would not have the 10 year bar or need the waiver but they would also need a visa.

You can provide information about why you overstayed and violated the VWP with your visa application for the consular officer to consider when he/she reviews your application.

Roughly, when did you depart the US?

emprex

thanks
i was thinking to apply for B2 for us both, to be safe, so we can provide evidence of situation.
We left early this year.
if you are wondering why we didnt vawa self petition, it was same sex partnership.

crg

It sound like quite an ordeal. I was wondering more about why you would even want to go back over considering the problems you had before.

emprex

not to the same area, for sure! never going to that state again.
I have friends in a different area, who rescued us.
Thanks, it seems B2 for us then.

meauxna

You can't move back to the US on B visas though..

You posted here before; what happened to your lawyers, and to your U visa application?

emprex

i don't want to move back there, just visit occasionally, have friends and Church there, in safe area. We are trying to rebuild life here now we are legal and safe.
It was a hard time for me then, had to overcome a lot of fears, including ICE, i was too scared to go any further while i was there with anything. Stalking got crazy even in shelter. Fled back here. That's cutting long story real short. Won't bore you here. Could maybe still get U visa, but, we are here now and rebuilding.

ian-mstm

Any overstay of 1 year or more (such as in your case) triggers a 10-year ban from the US. The ban triggers automatically when you leave the US. I don't believe there is a waiver to reduce/remove the ban. Further, in about 10 years, when you are eligible to apply for a visa, you will also need a waiver.

Caution - if you make an attempt to enter the US while you have a ban in place, you will be immediately subject to a lifetime ban from the US... and no waiver, I believe.


I'm so dreadfully sorry for your ordeal, but it makes no difference to the US government. Subsequent charges against your ex also make no difference.

Ian

crg

They do issue nonimmigrant waivers for the 10 year bar, but the person needs to demonstrate they are firmly established in their home country to qualify for one. I'm not saying this person would be issued the waiver, but there is nothing preventing them from applying for it. Whether they approve it or not is another story. It will depend on how compelling their situation is and if the consular officer believes they will violate again.

There is no automatic lifetime bar in this situation unless the border guards decide that there is fraud involved. I believe the lifetime bar you're posting about would involve someone who was unlawfully present or ordered deported and then attempts to enter the US, or enters the US without inspection (jumping the fence).

meauxna

I'm glad you are both safe now; your situation was very ugly. Because of that, I'm giving a pass on the multiple username thing and will not bring your other threads over here (and firmly request that other do not) for your safety.

However, I have to say, the below post is just about the understatement of the year. Whatever answers you get to that question, that have not taken your history into account, may as well be useless to you.

You really need an immigration attorney, who can examine your paperwork (which was unusual, as I recall) and your entire history before giving you travel advice.

A quickie is NOT going to be accurate in your situation. Best wishes to you both..

discoviking

Right. Someone who has accumulated a year or more of unlawful presence, or is removed and then enters again without inspection, would trigger a lifetime ban with no immigrant waiver available for 10 years. This is sometimes referred to as a '9C' ban on some other sites, and include minors. It would not seem to apply to the original poster in her(?) current situation.