Tourist visa denied

[Nena C 1]

I am married to a Australian citizen...I am an american citizen....we are living in Australia...My husband was denied a tourist visa 2 times 3 years ago before we were married because he overstayed his tourist visa accidently by 1 day...I want to go visit my mom ..who is having surgery and want him to accompany me...He does not qualify for the ETSA visa because of the over stay..so we want to apply for a b1/ b2 visa...we only want to go for 3 weeks..my question is what are the chances of yet another denial...We were not married at the time..but are married now....what kind of documents do we need to provide....to prove to the consulate that he has no intention of staying in the us.

[A'n'L 735]

When was his overstay? What were his previous reasons for travel?

[Nena C 1]

His overy stay was 31/2 years ago.....The reason for his visit was to. to see me ....and meet my family...we have since gotten married and are living in Austraia...I have applied for residency for myself in Australia ...We have no intention of staying there.

[Pinkrlion 2,607]

With his overstay, he will probably get denied, but you can still try.

[Nena C 1]

I will definitely try.....After all being married..should have an impact on the situation and also proof of application for residency .....which BTW cost $7000.... for myself..here in Australia...should show ample justification that we do not intend to migrate....at the same time as a spouse married to an american citizen...I could apply for residency for him.....I am not interested in residency in the US...just a visit......

[az2014 381]

After all being married..should have an impact on the situation and also proof of application for residency .....which BTW cost $7000.... for myself..here in Australia...should show ample justification that we do not intend to migrate....at the same time as a spouse married to an american citizen...I could apply for residency for him.....I am not interested in residency in the US...just a visit......

No not really.

Why would the US care about what you are planning to do in Aus? They dont. All they want is for people to leave the US when they are supposed to. I am not sure how you 'accidently' overstay. Not hard to calculate what day you need to leave.

Don't expect much apart from another denial.

[Nena C 1]

So you are basically saying he overstayed one day..literally one day.... and they will deny him FOREVER from entering USA....WOW and as for accidently= his flight was delayed and he had to stay an extra night in the US...thus expiring visa....not his fault...and as someone who had not dealt with the USCIS system before...we did not think this would become a problem. even the officer in immigration at the time...had said this should be not be a issue....as for your response...a bit of compassion and humility....at the end of the day I am a US citizen and am sure I can get him there on green card if I choose..but your response was condensing ....but as other post states suggests......US needs a solid reason for returning to home country ..what better then ..paying that much for his wife to stay in said country.

Thanks ..for advice ..but clearly..you need to find some humanity and compassion when you answer these questions...Reality is harsh..but your response doesn't have to be

[Harpa Timsah 13,258]

I think he will be approved. His overstay doesn't matter except that it makes him ineligible for the VWP. Good luck.

[Hypnos 6,576]

Being married to an American will not help him.

I'd say it's a 50-50 shot. Only one way to find out which way it will shake down.

[ryna 132]

I think he will be approved. His overstay doesn't matter except that it makes him ineligible for the VWP. Good luck.

I agree. The overstay was over 3 years ago, only by 1 day, not >180d or >1yr, so there is no ban and the American spouse is in the process of obtaining Australian residency (ties to Australia and all do count).

Apply and see. The worst you have to lose is the visa application fee. Honestly, I like his odds far more than I like my in-laws' odds.

The real lesson in all of this is don't plan your return for the last day of your tourist status. Always leave some wiggle room for things that are out of your control.

Edited May 12, 2016 by ryna

[yuna628 9,530]

So you are basically saying he overstayed one day..literally one day.... and they will deny him FOREVER from entering USA....WOW and as for accidently= his flight was delayed and he had to stay an extra night in the US...thus expiring visa....not his fault...and as someone who had not dealt with the USCIS system before...we did not think this would become a problem. even the officer in immigration at the time...had said this should be not be a issue....as for your response...a bit of compassion and humility....at the end of the day I am a US citizen and am sure I can get him there on green card if I choose..but your response was condensing ....but as other post states suggests......US needs a solid reason for returning to home country ..what better then ..paying that much for his wife to stay in said country.

Thanks ..for advice ..but clearly..you need to find some humanity and compassion when you answer these questions...Reality is harsh..but your response doesn't have to be

All you can do is try and see. It is very possible however you will still be denied, and it may or may not have anything to do with his overstay. Overstaying is something every visitor should be mindful of when they come to the US. While weather events and travel plans mess up, the person needs enough wiggle room to make sure they exit the US successfully. VWP is a privilege to be guarded carefully and once lost cannot be returned unfortunately. Do you have any proof from that time regarding the delay?

He's not denied from entering the USA forever, however, even if such a visit visa application is not successful. If you ever choose to live in the US again, it will have no bearing on you applying for him under a spousal visa. Accidental overstaying happens but I really wish people would be more mindful not to. There is a post here from a while ago of something similar, and the CBP had a helpful tip regarding what to do (though I don't believe it exists on their website anymore as it was still a gamble anyway) http://www.visajourney.com/forums/topic/451444-flight-cancelled-and-delayed/ They didn't retry with a visit visa though, but they did successfully enter on a K1.

[Mollie09 1,543]

You'll never know until you apply, but I'd say you have a solid chance.

Sounds like you two are settled in AUS, probably have jobs, property, all those ties that people always talk about, and you applied for residency so there's a strong reason for you to come back. I'd highlight that and his understanding of how his overstay was a big deal after all.

[aaron2020 11,651]

So you are basically saying he overstayed one day..literally one day.... and they will deny him FOREVER from entering USA....WOW and as for accidently= his flight was delayed and he had to stay an extra night in the US...thus expiring visa....not his fault...and as someone who had not dealt with the USCIS system before...we did not think this would become a problem. even the officer in immigration at the time...had said this should be not be a issue....as for your response...a bit of compassion and humility....at the end of the day I am a US citizen and am sure I can get him there on green card if I choose..but your response was condensing ....but as other post states suggests......US needs a solid reason for returning to home country ..what better then ..paying that much for his wife to stay in said country.

Thanks ..for advice ..but clearly..you need to find some humanity and compassion when you answer these questions...Reality is harsh..but your response doesn't have to be

Did he explain this on his visa applications and provide proof from the airline that there was a flight delay at his interviews? His overstayed is excused when the airplane is delayed.

https://help.cbp.gov/app/answers/detail/a_id/752/~/i-still-have-my-i-94

Delays beyond the traveler's control, such as cancelled or delayed flights, medical emergencies requiring a doctor's care, etc. are not considered unauthorized overstays, however, you will need to bring proof of the cause of your overstay next time you travel to the U.S. in order for it to be forgiven. For airline delays, ask the airline for a letter affirming the delay or a copy of your cancelled boarding pass.

Edited May 12, 2016 by aaron2020

[Aus2072 2]

Did you register you marriage also with the US embassy in Australia?

I know when we were looking in to this, we were told to register o;ur marriage in Australia if that was the path we chose. It would help travel in/out of USA and future visa issues easier.

I'd call the Embassy and talk to someone...

[Pennycat 880]

So you are basically saying he overstayed one day..literally one day.... and they will deny him FOREVER from entering USA....WOW and as for accidently= his flight was delayed and he had to stay an extra night in the US...thus expiring visa....not his fault...and as someone who had not dealt with the USCIS system before...we did not think this would become a problem. even the officer in immigration at the time...had said this should be not be a issue....as for your response...a bit of compassion and humility....at the end of the day I am a US citizen and am sure I can get him there on green card if I choose..but your response was condensing ....but as other post states suggests......US needs a solid reason for returning to home country ..what better then ..paying that much for his wife to stay in said country.

Thanks ..for advice ..but clearly..you need to find some humanity and compassion when you answer these questions...Reality is harsh..but your response doesn't have to be

Unfortunately, it is possible that they would deny someone a visitor's visa forever because of the overstay. They won't deny someone ever entering at all (that's a ban, and he certainly doesn't have a ban), but entering with a visitor's visa.... maybe.

Now, I don't think that it's very likely that they'll deny your husband a visitor's visa forever (and do look into the information provided here about forgiveness due to a flight delay-- that sounds promising, and maybe he could get VWP back?), but definitely possible and something that happens to people across the world all the time. They consider visiting the US (especially visa-free) to be a privilege and once used improperly, they're not in a hurry to extend it again. I know it sounds crazy (and in many ways it is) but most Western countries have similar laws and consequences. Either way, I really do think you'll be alright for the visitor's visa this time around, but just try to keep the big picture in mind.

You're actually dealing with the State department for the visitor's visa-- USCIS is for immigrating and becoming a citizen. If you think State is bad.... I've got some bad news for you for when/if you want to get your husband that green card.

Just a little bit of "down the road" prep: on the off chance that does not get this visitor's visa, you can't just apply for a green card and get him there that way. Green cards are for residency, not visiting. So you need to be moving back to the States and then apply for a spouse visa. The spouse visa is kind of a combo-- allows him to cross the border with the intention to move (which you cannot do on a visitor's visa) and acts as a "green card on arrival". But you can only get one if you (the petitioner) can show evidence of domicile (or maybe intention of domicile) in the US, so that really would not be possible for you to get for just visiting. He's certainly entitled to a spouse visa and green card and all that-- the condition is that for permanent residency in the US, you actually have to be living or have the intent to be living in the US. The spouse visas take about a year or so to process so when/if the time comes that you're thinking about re-locating, give yourself a good long lead time.

Essentially, your only options for him to be able to *visit* the US (moving is a completely different issue) are to get this visitor's visa or work to get his VWP reinstated. And a heads up for future planning purposes: you need to give yourself as much time as possible to straighten out his immigration *before* moving to the US, or you'll be in a similar tight spot.