Husband Overstayed Visa under VWP Problem?

[nathalieg 1]

Hello ladies and gentlemen I wanted to discuss my situation with you all since advice is much needed.

My husband and I met originally through Facebook by luck, he is from Greece and I was born here in California. We

maintained in contact through letters/internet/skype etc from 2009-2010 at which point we physically met.

He traveled to Los Angeles on my birthday in September 2010. Much of the reason we wanted to meet was to be sure how we both felt about each other

and when he came here to Los Angeles we were sure that we were in love and wanted to make our relationship something permanent.

He went back to Greece however because I was a student at the time and we both did not have any financial means by which to support each other and needed to save up to file for a K1 Visa through our lawyer.

He came to California in March of this year and as the time came closer in him having to leave, we both were

emotionally spent and could not stand the thought of being away from each other as we had been previously doing. So we both decided we wanted

to marry and did so earlier this month. He came here on March 1st through the Visa Waiver Program, and the stamped date marked on his visa

was valid until May 29. We will be ready to file for his adjustment of status in late August, so he would have overstayed by that time a little less then 3 months. I am really concerned about this. He did enter legally both times he came to visit me and he was traveling under the Visa Waiver Program both times

since his country is under the VWP.

Just some background information to keep in mind: When we first met he went to the US Embassy in his country

to try to obtain a tourist visa to travel to see me, but his application was denied since he was not employed at the time and he was not a student

so he really had nothing to come back to his country for besides family. About a month and a half after his tourist visa was denied, Greece

entered the Visa Waiver Program though I think they put him on a certain list of people who have been denied tourist visas before because

the two times that he traveled here with the VWP they questioned him to try to get him to say that he came here to work illegally and to marry me

which was not the case at all. Since he is 22 years old, when they saw a young man they imagined that was his intention. But our intention was never

for him to stay here permanently we just decided in the end that we wanted to be together and not waste any more time apart.

I did have a lawyer when he was in Greece when we were thinking of filing for the K1 Visa and he advised me that his denial of a tourist visa

had nothing to do with us filing for the K1 and would not affect our case, since he was granted admission to the US on both occasions even

though he was questioned and he entered legally under the VWP. Also the reason he was questioned is because when he bought the tickets to come

to the US a travel agency in Greece booked his tickets and filled out his ESTA information, and on the ESTA they indicated that he had not

been previously denied a visa, even though he told them that he was. He explained this to them and they verified that he was telling the truth

and he was admitted into the US (this was on his first visit). My then lawyer also advised me that because he was allowed into the country that

it would not affect our case negatively

So my final question is does the fact that he has overstayed his visa by 2-3 months under the VWP affect our case when we are ready to file for an adjustment of status and if so in what ways would it impact our case negatively?

Thank you very much in advance I appreciate you all taking the time to read this

We all can understand how stressful dealing with these things can be

Edited July 20, 2012 by nathalieg

[Harpa Timsah 13,258]

Overstaying is not a problem but lying on ESTA will be a big one.

[BobCray 5]

As you knew each other before, could there be a problem with fraud? Entering on the VWP with the intent on getting married.

[ceadsearc 516]

Overstaying is not a problem but lying on ESTA will be a big one.

I may have misunderstood but it sounds like when he filled out his ETSA application he was honest, but it got mixed up and looked to CBP as though he had lied, but they were able to determine that he had, in fact, told the truth. I'm not sure he should have been allowed into the US but I would think the problem MIGHT be less if he was honest on both ETSA and at the border.

OP, can you clarify?

[nathalieg 1]

Overstaying is not a problem but lying on ESTA will be a big one.

He did not lie on the ESTA, he had told his travel agency that he was previously denied a tourist visa

and they filled out the ESTA saying that he had not, without him knowing. So what they did at the port of entry

was they asked him why he had indicated that on his ESTA and they called the travel agency to verify that they

were the ones that filled out his ESTA form and indicated that on the form.

It was then up to customs whether he could enter the country and he did enter legally through the port of entry twice

[nathalieg 1]

As you knew each other before, could there be a problem with fraud? Entering on the VWP with the intent on getting married.

No we did not intend on him staying and getting married if we had intended to do that he would have stayed on his first visit

He came to visit in March and had a round-trip flight, also even after the date on his visa expired we had not been married

[nathalieg 1]

I may have misunderstood but it sounds like when he filled out his ETSA application he was honest, but it got mixed up and looked to CBP as though he had lied, but they were able to determine that he had, in fact, told the truth. I'm not sure he should have been allowed into the US but I would think the problem MIGHT be less if he was honest on both ETSA and at the border.

OP, can you clarify?

He had booked his flight with a travel agency and had told them he was previously denied a tourist visa and if that would affect

his entry into the country. The travel agency filled out his ESTA and lied on his ESTA even though he had told them he was denied a tourist visa

before the VWP went in effect. He had no knowledge that they had lied, and when he was questioned at the airport he was honest and told them

the travel agency had filled out his ESTA and they knew he had been previously denied but at no time did he tell them to say he had not been

previously denied nor did he have knowledge that they did that

I had talked to my lawyer about this and he said he was honest and given that they granted him entry he believed he would not have a problem

I consulted another lawyer and they told me the same thing that if they felt he was being dishonest they would have denied him entry but they did not

[BobCray 5]

So what they did at the port of entry was they asked him why he had indicated that on his ESTA and they called the travel agency to verify that they were the ones that filled out his ESTA form and indicated that on the form.

The immigration officer phoned a travel agency in Greece? How did they verify it was a travel agency and not just a friend?

Interesting.

[BobCray 5]

No we did not intend on him staying and getting married if we had intended to do that he would have stayed on his first visit

Of course, it's not whether you did or not, it's whether you can convince USCIS.

[nathalieg 1]

The immigration officer phoned a travel agency in Greece? How did they verify it was a travel agency and not just a friend?

Interesting.

When you book a flight through a travel agency they give you your itinerary with all your flight information and the travel agency has their name, address, and telephone number stamped on the itinerary, that is how they verified it was a travel agency

I mean you really can't fool customs if they felt he was being dishonest they would have denied him entry

[nathalieg 1]

Of course, it's not whether you did or not, it's whether you can convince USCIS.

Yes I understand that but again the ESTA is not the final arbitrator in entering the US, the CBP is, and they were convinced

that he was not being dishonest when he was questioned hence why he was allowed to enter.

Even if....

"Your travel authorization has been approved and you are authorized to travel to the United States under the Visa Waiver Program. This does not guarantee admission to the United States; a Customs and Border Protection (CBP) officer at a port of entry will have the final determination."

Also like I said our actions show our intent was not for him to

stay and marry if that had been so we would have gotten married immediately and filed for his AOS

[nathalieg 1]

His ESTA also expires September the 16th which would be about a bit less than a month into the AOS when we are ready to file