Can I re-enter the US?

[Tristan1978 133]

Hi guys,

 

My wife is a US citizen and we married while I was in the states last September 2016 I overstayed my ESTA I think the total of days stayed was around 180 days. I had to return to the U.K. for personal and financial reasons and have recently found out my lawyer has incorrectly filed my I -130 (approved) as an adjustment of status and not for consular processing, with this in mind can I return to the US to be with my wife?

[Crazy Cat 39,226]

Your ESTA privilege is lost forever.  You could have a 3 year ban. A CR-1 IR-1 might be your only way to join your wife.....

Edited October 29, 2017 by missileman

[JFH 12,189]

It's important to know exactly how many days you overstayed. Under 180 days is a 1 year ban. 180 days or more is a three-year ban. 

 

Your statement "I had to return to the U.K. for personal and financial reasons" makes no sense. The VWP is for visiting so you should have been intending to go home all along. You were supposed to be here as a visitor with a planned exit.The way you have worded it, it sounds like you came on the VWP with the intention of staying but things didn't go to plan do you went back to the U.K. And that's a no-no. Also it sounds like you are intending your do that again - come here without an immigrant visa with the intention of staying. It's equally a no-no. 

 

No, you cannot come to live with your wife until your immigrant visa is approved. You have a long road ahead of you. You may qualify for a waiver for your overstay but that adds many months to the process. 

 

Had you not left and had you continued to overstay and then adjust status, ironically you would be in a better position as the overstay would have been forgiven through the AOS procedure. Going home means that you have jeopardized your situation even more. But you can't undo what's been done. You just have to be very patient now. 

Edited October 29, 2017 by JFH

[Going through 5,668]

@JFH explained it best.

 

In a way, you returning to the UK was like self-deporting yourself since you will now have incurred an automatic ban for the overstay by leaving the US.  If you had not left the country, you would have been able to adjust status with the overstay being forgiven.

 

 

1 hour ago, Tristan1978 said:

my lawyer has incorrectly filed my I -130 (approved) as an adjustment of status and not for consular processing

It sounds like what your lawyer was doing was correct since you were already IN the United States when you got married and filed the I-130. 

 

You would need a waiver to re-enter the country after triggering the ban for overstay.

[Tristan1978 133]

How do I obtain a waiver, would I apply for an ESTA online?

17 minutes ago, Going through said:

@JFH explained it best.

 

In a way, you returning to the UK was like self-deporting yourself since you will now have incurred an automatic ban for the overstay by leaving the US.  If you had not left the country, you would have been able to adjust status with the overstay being forgiven.

 

 

It sounds like what your lawyer was doing was correct since you were already IN the United States when you got married and filed the I-130. 

 

You would need a waiver to re-enter the country after triggering the ban for overstay.

 

[Illiria 980]

3 minutes ago, Tristan1978 said:

How do I obtain a waiver, would I apply for an ESTA online?

 

No because you are no longer eligible for the esta as you overstayed. You cannot apply for a visitor visa because you have intent to stay and adjust says that intent is illegal. Your only option now is to go through consular processing for a spousal visa. After your interview at the consulate you would then apply for the waiver for overstaying. 

[Going through 5,668]

14 minutes ago, Tristan1978 said:

How do I obtain a waiver, would I apply for an ESTA online?

 

You are no longer eligible to use ESTA ever again, because of the prior overstay.

 

See this link from the USCIS website on obtaining waivers:  https://www.uscis.gov/i-601 

 

You need to figure out the EXACT number of days of overstay on your ESTA.

Edited October 29, 2017 by Going through

[Springrain22 427]

25 minutes ago, Tristan1978 said:

How do I obtain a waiver, would I apply for an ESTA online?

 

It's not going to happen. You're no longer eligible for that and I guess lifetime. You overstayed and trying to immigrate now illegally, not going to happen.

 

You already have your 1 year ban if you overstayed less than 180 days or 3 year ban if more than 180 days.

 

The only way you can come to the US is a spousal visa that might take up to 16 months once filed.

[geowrian 22,335]

24 minutes ago, Tristan1978 said:

How do I obtain a waiver, would I apply for an ESTA online?

If you overstayed by 180 days or more, you will have at least a 3 year bar. The bar can become overcome via an I-601. This would be filed after you otherwise would be approved for the immigrant visa. You'll get a notice about being denied due to the bar with an option to file a waiver.

 

You can no longer ever use ESTA again. Even one day of overstay makes you permanently ineligible for ESTA privileges. You would need a tourist visa to visit, and getting one with 1) a recent overstay, 2) a possible bar, and 3) a pending I-130 with a USC spouse is nearly impossible (but the $160 donation to the embassy to try is always appreciated ).

 

You should calculate the exact number of days between when you entered and when you left. If it's 180 days or more after your 90 days of legal status, then you will need a waiver. Either way, there's no immediate action to take (except maybe to prepare a waiver, if needed).

 

1 hour ago, JFH said:

It's important to know exactly how many days you overstayed. Under 180 days is a 1 year ban. 180 days or more is a three-year ban. 

Did I miss something...? There's no bar for an overstay under 180 days.

[JFH 12,189]

6 minutes ago, geowrian said:

 

 

Did I miss something...? There's no bar for an overstay under 180 days.

Oops my mistake. Up to 180 days is no ban. 180 days or more is a ban. Hence OP needs to count the exact number of midnights he overstayed by. 

[geowrian 22,335]

Just now, JFH said:

Oops my mistake. Up to 180 days is no ban. 180 days or more is a ban. Hence OP needs to count the exact number of midnights he overstayed by. 

Scared me for a minute there...thought I missed something important besides the unlawful presence.

[Meanis 7]

Unless you have a Visa you can not come to the US as mentioned by others above. You will not get Tourist visa neither

However the good thing is, that overstaying do not affect your spouse visa process and only can prelong it if you need waiver.

 

How did you travel back to the UK?

I heard that if people overstay, the one opt is drivig to Mexico and take flight home from there. Nobody check borders on the way out of the country so there is no stamp.

 

You should call an immigration lawyer.

 

Btw I am curious - do people get banned automatically if overstayed? 

 

[Going through 5,668]

6 minutes ago, Meanis said:

I heard that if people overstay, the one opt is drivig to Mexico and take flight home from there. Nobody check borders on the way out of the country so there is no stamp.

Considering the OP is in the UK right now, I don't think driving to Mexico is an option for him...

 

Plus the issue would arise when he is attempting to enter the US.

Edited October 29, 2017 by Going through

[geowrian 22,335]

2 minutes ago, Meanis said:

However the good thing is, that overstaying do not affect your spouse visa process and only can prelong it if you need waiver.

I wouldn't go so far as to say it won't affect it...the I-601 is certainly not a guarantee to be approved. It's discretionary. The odds are pretty good with a decent-but-well-laid-out case, but it's not a certainty by any means.

 

2 minutes ago, Meanis said:

How did you travel back to the UK?

I heard that if people overstay, the one opt is drivig to Mexico and take flight home from there. Nobody check borders on the way out of the country so there is no stamp.

Wouldn't matter as it would come out at the interview or when they attempt to try to enter again.

 

2 minutes ago, Meanis said:

Btw I am curious - do people get banned automatically if overstayed?

Yes (if it's 180 days or more). No paperwork or notice is provided.

[Meanis 7]

13 minutes ago, Going through said:

Considering the OP is in the UK right now, I don't think driving to Mexico is an option for him...

 

Plus the issue would arise when he is attempting to enter the US.

Hahaha- no i dont mean now.  I mean in worst situation, people just can try think out of box- for thise who knows they overstay for any reason, they travel to home country from mechiko. But i guess its too late to say it now. 

Now, the only one opt is to check the new wall testers but from the other side