2 days ESTA overstay

[Michal K. 0]

Hello,

 

i wonder if anyone

of you experienced a slight overstay on their ESTA. It was my fourth time in history that I travelled  on this electronic visa waver. This time I overstayed as I originally was supposed to adjust status in the USA, I actually filed for adjustment of status with my American husband. It tuned out my fella was a little abusive and I changed my mind staying in the states and returned to the UK. The application for AOS was pending at USCIS nonetheless I entered on esta and left on the 92nd day. Will

this have an impact on my future travels to the USA or considering my good history of timely visits this will be overlooked. Also the fact that I was in the process of adjusting status in the USA but had to leave due to abuse... I wonder what you guys think? Will I have problems returning on my esta in the future or my explaination regarding the intention to adjust status will be good enough?

 

thanks for help

 

[KULtoATL 1,551]

There was a lady who just overstayed by a day recently. Based on what I read in the other thread, you'll probably have to apply for a B2 in the future if you want to enter the US for tourism regardless of the reason of your overstay i.e. abuse.

[f f 725]

does not matter if it is 2 days or 2 years it is an overstay and when you apply for esta again it will most likely be denied requiring you to get a b1 b2 visa next time.

30 minutes ago, Michal K. said:

This time I overstayed as I originally was supposed to adjust status in the USA, I actually filed for adjustment of status with my American husband.

this is however more of a problem. you fully admit to visa fraud by coming on esta with the intention of adjusting and sending in paperwork. if you get another visitor visa you will need to prove you will not stay and adjust.

[Coco8 1,039]

You previous use of ESTA will not matter. If you overstay once is enough not to be able to use ESTA again. 

 

I would not recommend applying for a visitor visa because it will very likely get denied. 

 

I think you should wait at least a year, and maybe then you'd be able to use ESTA again. 

 

The fact that you filed for AOS could complicate things even further. That is why there are K1 visas and so forth. 

 

3 minutes ago, f f said:

this is however more of a problem. you fully admit to visa fraud by coming on esta with the intention of adjusting and sending in paperwork. if you get another visitor visa you will need to prove you will not stay and adjust.

It is not fraud if he didn't go into the US with the intention to adjust. It is fraud if he went with the intention to adjust. OP, had you sold all your stuff, resigned to your job, etc.? If you did that, they that will make it harder for you because that would be proof of not doing things in the right way.

 

Sorry your boyfriend was abusive. You might want to try to get an annulment or a divorce. Also, the moment you left the i-130 was abandoned but you still might have to withdraw it, I'm not sure how that works.

Edited July 24, 2017 by Coco8

[JFH 12,189]

41 minutes ago, Michal K. said:

This time I overstayed as I originally was supposed to adjust status in the USA

 

It may be a poor choice of wording but it does sound to me like AOS was intended all along (especially the use of "originally" - I interpret that as "from the beginning". 

 

That matters not, unless the OP plans to do it again with the same (should reconciliation happen) or a future spouse. 

 

Overstay is overstay. You must now apply for a visa should you wish to return. Whilst you may read that overstay is forgiven for spouses of USCs, that applies to those adjusting status in country, not overstaying as a visitor and returning home. 

Edited July 24, 2017 by JFH

[Michal K. 0]

6 minutes ago, JFH said:

It may be a poor choice of wording but it does sound to me like AOS was intended all along (especially the use of "originally" - I interpret that as "from the beginning". 

 

That matters not, unless the OP plans to do it again with the same (should reconciliation happen) or a future spouse. 

 

Overstay is overstay. You must now apply for a visa should you wish to return. Whilst you may read that overstay is forgiven for spouses of USCs, that applies to those adjusting status in country, not overstaying as a visitor and returning home. 

I think you didn't understand what I wrote. I arrived in the states in march and we didn't intend to adjust my status as we were hovering over moving back to Europe. Since my husband already had a job a decision to adjust status came along in April. We filed aod in the states same month. I never intended overstaying my welcome in the states and considering I had a choice of doing AOS using just my passport while in the states would overstay on esta apply if I chose to leave due to marital problems? . It appeared that we didn't get along with my spouse and I had to leave the country on the 92nd day of my original ESTA. Does this mean in the eyes of the us immigration law that I broke any law? If I was permitted to squat in the USA waiting for my green card as they are available for immediate family members... then what law did I break? I left the country while I was exercising another right. Will this affect my esta if next time I arrive in the states I give the clearance officer an explaination involving AOS incident? God forbid returning to the last spouse of mine! No! that would be on a tourist basis and to get divorced!

[Michal K. 0]

32 minutes ago, Coco8 said:

You previous use of ESTA will not matter. If you overstay once is enough not to be able to use ESTA again. 

 

I would not recommend applying for a visitor visa because it will very likely get denied. 

 

I think you should wait at least a year, and maybe then you'd be able to use ESTA again. 

 

The fact that you filed for AOS could complicate things even further. That is why there are K1 visas and so forth. 

 

It is not fraud if he didn't go into the US with the intention to adjust. It is fraud if he went with the intention to adjust. OP, had you sold all your stuff, resigned to your job, etc.? If you did that, they that will make it harder for you because that would be proof of not doing things in the right way.

 

Sorry your boyfriend was abusive. You might want to try to get an annulment or a divorce. Also, the moment you left the i-130 was abandoned but you still might have to withdraw it, I'm not sure how that works.

Guys it's all shoulda woulda coulda, and I see no substance in what you write, one thread contradicts another. My original intent was not to stay and adjust, I came with one suitcase and I never wanted to live in this country! There are better places for Europeans. Honestly. I was convinced by my spouse as he makes a substantial amount and we figured we could do it from within the country while being able to be together. 

Wellif the immigration law in my case states I committed a fraud or crime by overstaying my esta while aod was filed but had to leave due to abuse... then yes this and many other laws are flawed in the USA! After all I left the usa with two days overstay of esta that hypothetically was overridden by the pending application of bloody adjustment. Where is sense in all of this? I'm permitted to stay on esta if I file aod but should the circumstances change and I get beat up by my relative my departure will be considered overstaying my esta. Any immigration lawyer on here? Or is it just your logical conclusions ? Cos my logic is as above. 

 

what a state! g

 

 

thanks guys

Edited July 24, 2017 by Michal K.

[Coco8 1,039]

4 minutes ago, Michal K. said:

Wellif the immigration law in my case states I commuted a fraud or crime by overstating my esta while aod was filed but had to leave due to abuse... then yes this and many other laws are flawed in the USA! After all I left the usa with two days overstay of esta that hypothetically was overridden by the pending application.

You didn't commit fraud. 

 

You overstayed ESTA and that is a violation of ESTA. 

 

The ESTA violation is overlooked only if you had stayed and AOS. The reason why it is overlooked is because the Department of State is not involved in the process, only USCIS is involved in AOS. 

 

You are lucky you didn't overstayed longer or you would have a 3 year ban.

 

 

[Going through 5,668]

30 minutes ago, Michal K. said:

would overstay on esta apply if I chose to leave due to marital problems?

Yes.  They do not make allowances on that for marital problems.

 

30 minutes ago, Michal K. said:

It appeared that we didn't get along with my spouse and I had to leave the country on the 92nd day of my original ESTA. Does this mean in the eyes of the us immigration law that I broke any law?

Yes.  They do not make allowances based on the amount of days EXCEPT if the overstay is more than 180 days then it results in a 3 year ban from entering the United States.  By overstaying even the 2 days, immigration law was broken because the terms of the ETSA was not met.

 

Fortunately you left soon after your overstay so you are not automatically banned from re-entering the US and can attempt to apply for a visa.

Edited July 24, 2017 by Going through

[JFH 12,189]

 Visiting the USA is a privilege that the government bestowed upon you. The fact that you could visit for 90 days without a visa is another privilege that was bestowed upon you by the government. Many other countries are not so lucky or privileged. You abused at least one privilege so that privilege had been withdrawn from you. It's not about breaking laws, it's about breaking the "agreement" that you made with the government when you entered the country using the VWP. You're lucky the USA allows visitors to adjust status - many other places don't. 

 

You didn't successfully adjust so you overstayed and were in breach of the provisions of the VWP. End of story. That's why AOS from VWP always carries a risk. If, for whatever reason, you don't complete the process or it's denied you are an overstayer and subject to removal. And csn no longer use the VWP.

 

There are no rights when it comes to immigration. Just privileges and benefits. 

[Unlockable 7,306]

3 hours ago, Michal K. said:

Guys it's all shoulda woulda coulda, and I see no substance in what you write, one thread contradicts another. My original intent was not to stay and adjust, I came with one suitcase and I never wanted to live in this country! There are better places for Europeans. Honestly. I was convinced by my spouse as he makes a substantial amount and we figured we could do it from within the country while being able to be together. 

Wellif the immigration law in my case states I committed a fraud or crime by overstaying my esta while aod was filed but had to leave due to abuse... then yes this and many other laws are flawed in the USA! After all I left the usa with two days overstay of esta that hypothetically was overridden by the pending application of bloody adjustment. Where is sense in all of this? I'm permitted to stay on esta if I file aod but should the circumstances change and I get beat up by my relative my departure will be considered overstaying my esta. Any immigration lawyer on here? Or is it just your logical conclusions ? Cos my logic is as above. 

 

what a state! g

 

 

thanks guys

 

 

You are not getting the point.

 

If you had left, even if it was because of the abuse, before the 90th day... you would still have your ESTA. And unfortunately a bad relationship is not an excuse for keeping the ESTA. Like said, it is a privilege. The burden is upon you to know the rules of it.

 

You can still apply for a B2.

[Boiler 43,396]

ESTA is for the squeaky clean. you no longer qualify.

 

If you wish to visit in the future you will be need to apply for a b visa and will have the opportunity of explaining the circumstances of your overstay in that process.

[geowrian 22,335]

7 hours ago, Michal K. said:

I think you didn't understand what I wrote. I arrived in the states in march and we didn't intend to adjust my status as we were hovering over moving back to Europe. Since my husband already had a job a decision to adjust status came along in April. We filed aod in the states same month. I never intended overstaying my welcome in the states and considering I had a choice of doing AOS using just my passport while in the states would overstay on esta apply if I chose to leave due to marital problems? . It appeared that we didn't get along with my spouse and I had to leave the country on the 92nd day of my original ESTA. Does this mean in the eyes of the us immigration law that I broke any law? If I was permitted to squat in the USA waiting for my green card as they are available for immediate family members... then what law did I break? I left the country while I was exercising another right. Will this affect my esta if next time I arrive in the states I give the clearance officer an explaination involving AOS incident? God forbid returning to the last spouse of mine! No! that would be on a tourist basis and to get divorced!

Even one day after your I-94 expires (90 days) is an overstay. Another drawback of using the VWP is that you forfeit essentially all rights to contest anything. Your days of using an ESTA are behind you...you'll need a tourist visa to come again. Getting that anytime soon is also unlikely since you recently filed for AOS on a past visit, and broke the rules by overstaying. There's no ban in place, but they will take into account that you overstayed previously when considering if they think you will overstay in the future. They will look at the past AOS filing when considering your intent to return home.

[Dutchster 1,106]

I mean, he can try for himself to enter the US on his ESTA but as soon as the officer sees he overstayed his ESTA -even by two days-, Mr OP will be put on the next plane back home.

Rules, laws and agreements apply to everyone, OP. Remember that.

Edited July 25, 2017 by Dutchster

[Boiler 43,396]

10 minutes ago, Dutchster said:

I mean, he can try for himself to enter the US on his ESTA but as soon as the officer sees he overstayed his ESTA -even by two days-, Mr OP will be put on the next plane back home.

Rules, laws and agreements apply to everyone, OP. Remember that.

She does not have a visa, that is the point, needs to apply for one.