Overstayed – took a chance, got back in – chance again?

[caitni2000]

Hi,

My Fiance and I, both from UK, visited US in June 2002, I had a J-1 for uni placement, he had a waiver and we both left Oct 2003 (He overstayed 13 months)

We returned to the US (different state) July 2004 both on waiver, he got through no problem. I returned in 3 months to uni, he overstayed 9 months and returned July 2005.

We have remained in the UK since and intend to do so in the future.

We are getting married next July and would like to go on a Caribbean cruise – departing from the US.

1. We are thinking of chancing a trip before then to see if he gets in – will that clear him again?
2. The fact that he got through 2nd time and overstayed again I know isn’t good. If he goes to the embassy and applies for this visa is it going to flag up his previous history regarding the first over stay and flag him as a risk? (we were thinking of not mentioning the first one)

If he does go for this interview, is there anything he can use to prove he won’t overstay again? (job/mortgage etc)
We have friends from US which we would like to be able to visit in the future and this all seems so restrictive! ï

[sakura]

[quote="caitni2000"]Hi,

My Fiance and I, both from UK, visited US in June 2002, I had a J-1 for uni placement, he had a waiver and we both left Oct 2003 (He overstayed 13 months)

We returned to the US (different state) July 2004 both on waiver, he got through no problem. I returned in 3 months to uni, he overstayed 9 months and returned July 2005.

We have remained in the UK since and intend to do so in the future.

We are getting married next July and would like to go on a Caribbean cruise – departing from the US.

1. We are thinking of chancing a trip before then to see if he gets in – will that clear him again?
2. The fact that he got through 2nd time and overstayed again I know isn’t good. If he goes to the embassy and applies for this visa is it going to flag up his previous history regarding the first over stay and flag him as a risk? (we were thinking of not mentioning the first one)

If he does go for this interview, is there anything he can use to prove he won’t overstay again? (job/mortgage etc)
We have friends from US which we would like to be able to visit in the future and this all seems so restrictive! ï

[Marco 72]

I'd advise you not to even risk stepping foot in the US - he has broken the law twice and seems to think it is possible to return? He is definately barred from using the VWP, and if he dares to lie on the visa application and then gets caught, that's another black mark against him.

I am no expert but I think that the fact he used the VWP and/or re-entered even after overstaying more than one year might well constitute a lifetime ban, if the US authorities in the UK or US ever find out. I would seek professional legal advice before going to the US embassy.

I'm no lawyer, but I'm not sure he has broken any laws. Luckily for him the VWP form doesn't include a question on previous overstays, so unless he was specifically asked at the POE he didn't commit misrepresentation (which indeed results in a lifetime ban).

[sakura]

I'd advise you not to even risk stepping foot in the US - he has broken the law twice and seems to think it is possible to return? He is definately barred from using the VWP, and if he dares to lie on the visa application and then gets caught, that's another black mark against him.

I am no expert but I think that the fact he used the VWP and/or re-entered even after overstaying more than one year might well constitute a lifetime ban, if the US authorities in the UK or US ever find out. I would seek professional legal advice before going to the US embassy.

I'm no lawyer, but I'm not sure he has broken any laws. Luckily for him the VWP form doesn't include a question on previous overstays, so unless he was specifically asked at the POE he didn't commit misrepresentation (which indeed results in a lifetime ban).

But the fact that his initial overstay not only makes him ineligible for the VWP, but also bars him from re-entry for 3-10 years, means that it is some form of misrepresentation, no? No one expects anyone to 'declare' their immigration history if not asked, but he knowingly participated in the VWP again despite his ineligibility...

[Marco 72]

But the fact that his initial overstay not only makes him ineligible for the VWP, but also bars him from re-entry for 3-10 years, means that it is some form of misrepresentation, no? No one expects anyone to 'declare' their immigration history if not asked, but he knowingly participated in the VWP again despite his ineligibility...

See here:

"The phrase "misrepresentation for the purpose of gaining admission into the United States" has been defined as wilful misrepresentation, oral or written, to any "person while he is charged with the enforcement or administration of any part of the act, of any matter, material to an alien's eligibility for any of the benefits of this act." 8 C.F.R. � 700.11 (1950)."

I don't think this applies in the above case.

[caitni2000]

Thanks for the info guys, feeling a bit better about it all. I do think we will see a lawyer or get a bit of legal advice. If it comes to it and we chance getting through again and it works out, great. If not and he gets a ban, ah well... it’s a big beautiful world out there, just transit it going to be a little more pricey!!