Attempting to re-enter US with prior DACA status

[schiffko 0]

Hello everyone,

I have a specific problem and I hope that maybe someone can help.

My wife was granted DACA status in 2014, she came to the US when she was 13 
with her parents without legal status.

She has no criminal record.

I am a German citizen living in Germany, my wife and I met in the US in 2014, 
got married there and moved to Germany in 2015.

My wife obtained the German citizenship earlier this year, lives here and is 
currently in school studying.

My question:

My wife's family lives in the US and she would like to visit them with an ESTA Visa for EU citizens.

Does anyone know if she can be admitted to the US in order to visit her family with an 
approved ESTA Visa or would she face any problems entering the US due to her 
prior status?

I tried to find information in different forums and articles without any luck.

Thanks for your help.

Florian

[TNJ17 1,329]

That all depends. If she kept legal status in the US when she left she might be ok and no ban. If she kept illegal status, she triggered it when she left and entitled a ban. If she has a ban she can’t use esta. She would have to apply for a tourist visa and get a waiver. Unfortunately there is no way of knowing if someone has a ban or not other than them knowing if they stayed illegal or not and for how long. 

[schiffko 0]

So what you say is if she is banned she would be denied for the ESTA and if no ban the Visa would be approved? But how would they know who she is since she has a new last name and citizenship. 

 

Kept legal status means that she was still approved DACA the time she left the US? If so yes she was.

 

Thanks for the input!

[geowrian 22,335]

There's not enough information to know if she has a ban or not, although I would have expected her ESTA to have been denied if that were the case. CBP can still consider the past overstay in determining if she is likely to violate status again, although typically ESTA travelers don't raise much concern.

 

Edit: The new passport + name may explain the ESTA piece...the ESTA system may not have caught that yet. If somebody EVER had an overstay, they are not eligible for an ESTA. This is on a per-person basis, not passport/citizenship basis. This can be a killer here, unless she was granted DACA before turning 18 and maintained that status until she left the US...in which case she would have no unlawful presence and may (I'm not sure tbh) be eligible for an ESTA.

Did she disclose her past overstay on the ESTA application?

Edited August 7, 2018 by geowrian

[schiffko 0]

I need to gather some more info.

 

We haven't submitted for ESTA with the german passport. I remember we submitted an ESTA Visa when we moved to Germany with her old Passport (Also EU) to see if it gets approved which it did. 

 

I can't recall right now if there was a section for past overstay on the ESTA application, need to check again.

 

I guess ultimately she'll only know if she tries to enter the US, provided that she has an approved ESTA.

Imho the killer could be the fingerprint check at customs if they check the Database (DACA) if you know what i mean.

 

Any suggestions other than this on how to proceed?

 

[geowrian 22,335]

If she ever overstayed in the US (i.e. a single day in the US from age 18 onward without DACA coverage), then she definitely isn't eligible for an ESTA at all. She can be eligible apply for a tourist visa, but ESTA is permanently ineligible at a single day of overstay.

This may still apply for DACA holders and minors even if they were covered from the unlawful presence part...that part I'm not sure about (the wording of the question implies it does, but I cannot say that is the case with certainty).

 

Question #9 of the eligibility section covers overstay:

"Have you ever stayed in the United States longer than the admission period granted to you by the U.S. government?"

 

Assuming that is the case, IMO she should apply for a tourist visa instead of using ESTA. If she were to apply for an ESTA and is ineligible, it will be denied (but all you have to lose is the ESTA fee, which isn't much). If she were to misrepresent herself on the application, she would get a permanent bar on any entry or visa.

[Jojo92122 1,924]

On 8/7/2018 at 8:03 AM, schiffko said:

So what you say is if she is banned she would be denied for the ESTA and if no ban the Visa would be approved? But how would they know who she is since she has a new last name and citizenship. 

 

Kept legal status means that she was still approved DACA the time she left the US? If so yes she was.

 

Thanks for the input!

Your wife has to answer truthfully that she was not legal in the US.  It doesn't matter if she has a new last name and citizenship.  Those things do not wipe away her past.  

 

DACA did not wipe away the time she was illegally in the US.  She did not keep legal status before getting DACA.  So the answer is yes, she has stayed in the US longer than the admission period granted by the US Government.

File for ESTA, be truthful, and find out.  Lying on ESTA and making a material misrepresentation can lead to severe stupid problems including a lifetime ban.

 

If she can't get ESTA, then she can apply for a visitor visa.  Remember to tell the truth.  DACA.  New name.  New passport.  Does not wipe away the fact that she was living illegally in the US.

Edited August 9, 2018 by Jojo92122

[schiffko 0]

Thanks everyone for the input, we'll proceed as mentioned ESTA including all info, and if denied attempt to get a B-2 through the local embassy.

 

Thanks again!

[Boiler 43,433]

Wonder what happened.

[schiffko 0]

8 hours ago, Boiler said:

Wonder what happened.

I'll keep you posted, will likely happen in the next 5-6 month...