ericson41

Hi All, It's my first time on this forum and I'd certainly appreciate any advice you can give.
In April 2013 I went to the US to buy a sailing boat to sail back to the UK. I used the full three months of the VWP to prep the boat for the trip home. I obtained clearance for the boat from the US customs and border protection. I started the trip along long island sound and the engine died. I pulled into a local marina (I'm still in the US) to carry out repairs. The repairs took a few days, so on my 90th day, I called the local Customs office and told them of my problem. I asked if I should take a flight out of the country and re enter as my VWP would expire. The officer (I have his name and badge number) said there was really no need If I was heading out shortly. Another day passed and I was waiting on an engine part to be fedex'd out to the marina. Again I called the Customs and Border protection and said I am still in the country. He said as long as I stayed on the boat there was no issue. I asked him to log this conversation on the immigration system and he again gave me his name and badge number. After 8 days overstay, the marina said the job would take a few more days, so I flew back to the UK. I had no issues at the airport and nobody said anything.
I have a flight booked back to the US in a weeks time. I went to apply on the ESTA website, but it said "you have an approved application found". So I guess I have 2 questions. 1) will I even get onto the plane and 2) will I be turned away at Washington Dulles airport? I have a file of supporting paperwork. I only need 1 day in the US to collect my boat and sail her home. Any thoughts would be appreciated, Many thanks.

S Folinsky

Interesting set of facts and questions. I tend to think that a real-time full consultation with an immigration attorney might be in order. It strikes me that there may be many shades of grey in this one and the answers may be on the fuzzy side. There may be discussions that are best NOT done in a public forum.

Super-conservative advice would be "get a visa." Sometimes, navigating the grey areas of the law requires a degree of risk tolerance by the person involved.

Noorah101

Hi and Welcome to BE.

You mean 90 days, not 3 months, right?

That was a mistake, as you can't really count on anything a government official like that tells you. The US government routinely hands out misinformation, and it's up to YOU to make sure you are complying with the VWP terms. So, from this point on, we can assume that CBP has no idea what they real law is, and that they can and might have given you wrong information.

Makes no difference that you have his name and badge number, since the US goverment is not responsible for the misinformation they give you.

See above.

Right, that's normal. There is no immigration control when exiting the USA.

ESTA does not ask about prior overstays. But since you know you overstayed, you can now never use the VWP again, even though the system says you have a valid ESTA.

There is no way of knowing in advance.

The supporting paperwork means nothing. I don't see how staying on the boat for 8 days beyond the allowed 90 makes you except from having overstayed. I assume the boat was next to US soil, so wouldn't that still be considered "being in the USA"?

You should have a 1-time consultation with an immigration attorney before you embark on your USA visit. In my layman's opinion, you have an overstay and can't use the VWP again.

Rene

Hawkini

The letter of the law says that any overstay - 1 day up to 6 months = no more VWP ever. (anything over 6 months is a ban).

You'll also note that anybody you talked to is able to give you information that is not correct - they do not need to check it and can even lie to you and it will not be their problem.

I fear you should have stayed in the US and just completed the work on your boat - I can not imagine at the POE that a border agent will let you in for "just one day" because you have paperwork that says you have a boat and you talked to someone in CBP. I recommend whatever S.Folinsky said - perhaps a consultation with an attorney is in order - without one you MUST get a visa according to the law.

S Folinsky

General comment: there has always been a beastie known as "satisfactory departure" or "voluntary departure" where the Dark Forces say they will not bother somebody. So, I would not CBP was "lying" or giving "misinformation." However, that advice was regarding enforcement of removal and NOT coming back. Different issues.

OP's questions are quite involved on many different levels.

Hawkini

That's what I thought at first - but reading the OPs original post, he did ask about "leaving and coming back".

The CBP response to him was "it shouldn't matter".

Hence misinformation... (not necessarily lying!)

Noorah101

I guess it depends on what the officer meant by "shortly". Since it was the 90th day, he could have meant shortly to be "in a few hours", and still be on the 90th day. As it turned out, "shortly" actually became 8 more days....which I don't think qualifies as "shortly" anymore.

But, I am a layman and just expressing my opinion. As Mr. F. has noted, a consultation with an attorney is in order.

Rene

md95065

Just one comment - while the OP may have not foreseen the circumstances which resulted in their overstay that doesn't make it an "emergency" ...

ericson41

Wow, thanks so much for all the quick replies. The US homeland security website does say this about emergency extensions:
https://help.cbp.gov/app/answers/det...s-an-emergency
My own thoughts are that if the officer I spoke to did register my overstay on the system and the USCIS district director was informed, then I didn't overstay. However, I doubt I was that lucky. I think I will call the officer concerned tomorrow (I'm sure he will be surprised to hear from me after a year), however the New haven CT branch of Homeland security is small and I built up a good rapport with him. But no doubt what some of you have said is very true, he is a small pawn in a big chess game and alas I doubt he will have any authority to do anything, but he may shed some additional light on what "the computer system" says about me. So I guess the likely hood is that I will need to cancel my flight on Monday and apply for a B2 tourist visa and take along all my supporting evidence to the interview. How I wish I had just stayed with my boat and sailed her home to the UK, it's a sad example of when honesty doesn't pay!... Thanks again for all your comments.

S Folinsky

<sigh> Just love it when people talk to the Dark Forces before getting that legal consultation. Just love it. Really. Yes, really.

Noorah101

Why?

Just have a consultation with an immigration attorney, as that is the only person who can actually tell you what the law says.

Rene

Pulaski

. To reiterate the wise advice in the two posts above, please do not call the DHS before a legal consultation, it is highly unlikely any good will come of it and there is the potential for you to do substantial harm to your position.

And for starters DHS officers are not in the habit of sharing data from their records with a voice on the phone; really, they're not!

mikelincs

Please note that Mr Folinsky gives you good advice, and as he was an immigration attorney, but please do NOT pm him as he does not reply to PMs, only to make suggestions on the forum, then it's advice that you really should be heeding, and not phoning people who may well have no idea if the advice they give you is correct.

ian-mstm

Oh dear god... not only does the web site not reflect the law, your situation wasn't an emergency. You could have left, and said as much in your first post.


That would be a mistake... because nothing the officer said then or says now is binding on US immigration. You will never be sure whether or not he's telling you the truth, or what he thinks is the truth. You've already taken his bad advice once and created problems for yourself... do you really want to do that again?


Here's one more... fly to Halifax, hire a boat to take you into international waters off the coast of New York, have someone pilot your boat into international waters, you transfer to the boat and take her home. That's likely the only way this will end well for you.

Ian

crg

In the old days, the authorities could annotate the reverse of the I-94W to grant satisfactory departure. It's unclear what the process is now, but I doubt the benefit is granted telephonically. It's also unclear what a lawyer would do other than help write a letter to be used during a VWP entry attempt or a visa application since they generally don't represent someone during an inspection.

If it hits the fan at the border, they may opt to parole you in since it was a minor overstay and advise you to get a visa for the next trip.