Traveling to US with Pending I-130 after ESTA overstay

[SleepySpyder 0]

My fiance traveled to the US on the VWP to live with me for 90 days last year on Nov 3rd until Feb 2. She ended up overstaying by 1.5hrs because the covid test we got wasn't accepted and she had to get a new one and a new flight. The soonest was at 1:30am Feb 2nd. So by the time she boarded, she overstayed an hour. I contacted customs as you are supposed to in the case of an overstay while she was on the plane and they said we did the right thing, and she will just have to explain the situation at the embassy during the visa interview.

We traveled to the UK and got married there in May and then submitted the I-130.  She wants to visit while we wait. Would she be allowed to us the VWP again or does she need to get a B-2?

[Mike E 11,723]

1 hour ago, SleepySpyder said:

My fiance traveled to the US on the VWP to live with me for 90 days last year on Nov 3rd until Feb 2. She ended up overstaying by 1.5hrs because the covid test we got wasn't accepted and she had to get a new one and a new flight. The soonest was at 1:30am Feb 2nd. So by the time she boarded, she overstayed an hour. I contacted customs as you are supposed to in the case of an overstay while she was on the plane and they said we did the right thing, and she will just have to explain the situation at the embassy during the visa interview.

We traveled to the UK and got married there in May and then submitted the I-130.  She wants to visit while we wait. Would she be allowed to us the VWP again or does she need to get a B-2?

Her esta is likely over but she she re-apply.  The over stay and the pending I-130 count against her.  Your characterization of her visit as “living” with you doesn’t help either.  
 

She could have gone to Mexico instead of over staying.  

[pushbrk 12,110]

29 minutes ago, Mike E said:

Her esta is likely over but she she re-apply.  The over stay and the pending I-130 count against her.  Your characterization of her visit as “living” with you doesn’t help either.  
 

She could have gone to Mexico instead of over staying.  

Agree.  If her ESTA is still within the valid date range, I wouldn't worry, but if she has to apply again, there may be a problem.

 

She visited.  She was not authorized to "reside in" the USA.

 

In our culture we "stay" in a hotel, or stay with friends for a visit but where we "live" is where our "stuff" is.  In other cultures and languages there is often no distinction made between stay and live, so you "live" where you "sleep", but this question is asked in the context of the USA, its use of language and its culture.  

Edited August 11, 2022 by pushbrk

[Boiler 43,434]

When can’t I use the VWP (ESTA) and need a visa?

Due to personal circumstances:

you traveled to certain countries (Iran, Iraq, Sudan, Syria, Libya, Somalia, and Yemen on or after March 1, 2011),

you are a dual national of any of the above mentioned countries,

you’ve been denied an ESTA, visa or entry into the United States in the past,

you overstayed on a previous Visa Waiver visit,

you’re not a citizen from a country participating in the VWP program traveling to the U.S.

this includes passengers in transit

passengers not leaving the plane,

if you might otherwise be ineligible for a visa,  you are not eligible to use the VWP

 

https://nl.usembassy.gov/visas/visa-waiver-program/

[pushbrk 12,110]

4 hours ago, Boiler said:

When can’t I use the VWP (ESTA) and need a visa?

Due to personal circumstances:

you traveled to certain countries (Iran, Iraq, Sudan, Syria, Libya, Somalia, and Yemen on or after March 1, 2011),

you are a dual national of any of the above mentioned countries,

you’ve been denied an ESTA, visa or entry into the United States in the past,

you overstayed on a previous Visa Waiver visit,

you’re not a citizen from a country participating in the VWP program traveling to the U.S.

this includes passengers in transit

passengers not leaving the plane,

if you might otherwise be ineligible for a visa,  you are not eligible to use the VWP

 

https://nl.usembassy.gov/visas/visa-waiver-program/

While all of the above is true and correct, it is not clear whether a single hour of overstay during COVID would make the person ineligible.  The answer comes from a new registration for ESTA.

 

It should also be noted that a person is deemed to have left a country that gives exit stamps, at the time the stamp is given, not at the time the plane takes off.  Since the US does not give exit stamps, it's not clear to me whether we are talking about an overstay based on an hour past midnight of the required exit day.  Otherwise, how is the exit date/time actually known, so as to render one ineligible to return using ESTA?

Edited August 12, 2022 by pushbrk

[Boiler 43,434]

The first line states an ineligibility, there is no ability to waive, the solution is to apply for a B.

[pushbrk 12,110]

7 hours ago, Boiler said:

The first line states an ineligibility, there is no ability to waive, the solution is to apply for a B.

Not sure which line you're calling the first line, but only one seems to apply, which is the overstay.

[SleepySpyder 0]

On 8/12/2022 at 12:51 AM, pushbrk said:

While all of the above is true and correct, it is not clear whether a single hour of overstay during COVID would make the person ineligible.  The answer comes from a new registration for ESTA.

 

It should also be noted that a person is deemed to have left a country that gives exit stamps, at the time the stamp is given, not at the time the plane takes off.  Since the US does not give exit stamps, it's not clear to me whether we are talking about an overstay based on an hour past midnight of the required exit day.  Otherwise, how is the exit date/time actually known, so as to render one ineligible to return using ESTA?

She doesn't remember getting an exit stamp.

We just found out b2 visas take at least 6 months and up to 10 years to get, so that's not an option. From what I understand, applying for ESTA doesn't mean you get in and it's up to the individual customs people when you arrive to turn you away ir let you in. Which seems silly and wasteful.

[pushbrk 12,110]

2 hours ago, SleepySpyder said:

She doesn't remember getting an exit stamp.

We just found out b2 visas take at least 6 months and up to 10 years to get, so that's not an option. From what I understand, applying for ESTA doesn't mean you get in and it's up to the individual customs people when you arrive to turn you away ir let you in. Which seems silly and wasteful.

B2 visas don't TAKE 6 months to 10 years to get.  They allow a six month visit and allow multiple visits over a 10 year period.  She doesn't remember getting an exit stamp because the US doesn't DO exit stamps.  

 

My question was, "How does CBP come to know she overstayed an hour.  Based on what?  BECAUSE there is no exit stamp or actual record of her departure.

[Redro 4,599]

 

On 8/12/2022 at 6:29 AM, SleepySpyder said:

My fiance traveled to the US on the VWP to live with me for 90 days last year on Nov 3rd until Feb 2. She ended up overstaying by 1.5hrs because the covid test we got wasn't accepted and she had to get a new one and a new flight. The soonest was at 1:30am Feb 2nd. So by the time she boarded, she overstayed an hour. I contacted customs as you are supposed to in the case of an overstay while she was on the plane and they said we did the right thing, and she will just have to explain the situation at the embassy during the visa interview.

We traveled to the UK and got married there in May and then submitted the I-130.  She wants to visit while we wait. Would she be allowed to us the VWP again or does she need to get a B-2?

I just checked my I-94 history and the DATE of entry and exit  is recorded not the TIME.

So, I don't think overstaying by 1 hour or 23 hours makes a difference.

I would have your partner check their I94 history to see which day CBP registers as her departure date. She might not have overstayed.

https://i94.cbp.dhs.gov/I94/#/home

 

THEN, you should go follow the instructions from CBP to see if the ESTA is still valid.This should work but I'm not 100% sure. 

https://help.cbp.gov/s/article/Article-1143?language=en_US#:~:text=To check your ESTA status,of birth%2C and application number.

 

Even if her ESTA is still valid ENTRY is not guaranteed. Especially if this next visit is very soon after her last visit. Advice on VJ is to stay away double the time you were in the US. So she shouldn't visit for another 6 months after her last visit.

 

Appointment wait times for London: 166 days. 

https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/wait-times.html

 

 

 

Edited August 25, 2022 by ROK2USA

[SleepySpyder 0]

Update, we just checked her I-94. She was only admitted until Jan 30th, and left Feb 2 at 00:20 AM

And they marked her departure as Feb 2nd on the i-94

[SleepySpyder 0]

It looks like ESTA will be impossible. The next step is to try to be approved for the B-2 then.

She doesn't have a job because she recently left her job. She doesn't own property because she lives in an apartment with her mother. 

Is the fact that we've got through so many hurdles and spent so much money to do everything legally evidence that will help her case?

She flew here originally for $2000 so we could meet in person to meet the requirements before I could sponsor her. Then we traveled to the UK twice to follow their marriage laws. We had to live in the same county for 7 days to establish residency, then give notice to the government for the marriage. Then we each went back to our home countries,  waited to be approved by the UK Home office, then returned to the UK for a week, got married and each went home again.

Going through all this and spending so much money to follow all the rules would be wasted if she tried to commit fraud on a B2. So it would be silly for her not to return to Japan. She also needs to return to Japan for her appointment for the CR1.

Our end goal is for her to be here legally, so why would we want to commit fraud on a B2?

She has also traveled to other countries including the US and returned (US, UK, China, Hong Kong).

That all seems like evidence they should consider 

[Redro 4,599]

35 minutes ago, SleepySpyder said:

It looks like ESTA will be impossible. The next step is to try to be approved for the B-2 then.

She doesn't have a job because she recently left her job. She doesn't own property because she lives in an apartment with her mother. 

Is the fact that we've got through so many hurdles and spent so much money to do everything legally evidence that will help her case?

She flew here originally for $2000 so we could meet in person to meet the requirements before I could sponsor her. Then we traveled to the UK twice to follow their marriage laws. We had to live in the same county for 7 days to establish residency, then give notice to the government for the marriage. Then we each went back to our home countries,  waited to be approved by the UK Home office, then returned to the UK for a week, got married and each went home again.

Going through all this and spending so much money to follow all the rules would be wasted if she tried to commit fraud on a B2. So it would be silly for her not to return to Japan. She also needs to return to Japan for her appointment for the CR1.

Our end goal is for her to be here legally, so why would we want to commit fraud on a B2?

She has also traveled to other countries including the US and returned (US, UK, China, Hong Kong).

That all seems like evidence they should consider 

At POE, someone could view it as:

Why would she go home if she doesn't have a job and she lives with her mother (doesn't pay rent?/no ties to her home country)?

This means she isn't making money and is more likely to stay in the US with you because it is too expensive to travel back and forth.

She has also recently returned to Japan with the intention of moving to the US- so she really has to convince the CO at interview she has no intention of overstaying in the US- but how can she convince them of that fact if she has previously overstayed?

She hasn't obeyed the rules so why would she obey them now?

The US assumes everyone has immigrant intent. 

Your partner has shown immigrant intent AND has overstayed. 

She should get a job and stronger ties to Japan and then try for a tourist visa. 

Another poster was able to do that recently... so it isn't impossible. 

 

Edited August 25, 2022 by ROK2USA

[Mike E 11,723]

3 hours ago, pushbrk said:

 .  

 

My question was, "How does CBP come to know she overstayed an hour.  Based on what?  BECAUSE there is no exit stamp or actual record of her departure.

As you can see from subsequent comments there is in fact a record of departure. 
 

Most people  who aren’t a U.S. or Canadian citizen is well aware of I-94 departure records and increasingly Canadians are becoming aware of them.  I-94s used to be paper. They are now electronic most of the time.  
 

The way this works is that CBP requires airlines to tell CBP when someone with a foreign passport departures the USA.  This has been going on for at least a decade. 
 

When exiting the USA by land visa Canada, CBSA shares the entry record with CBA

 

The system is not always accurate but it seems to work at least 99 percent of the time.  
 

As I wrote  before, OP should try for ESTA but I think it is gone forever. 

Edited August 25, 2022 by Mike E

[Troy B 221]

if the i-130 has already been filed, getting a B-2 visa is unlikely (i-130 shows immigrate intent),  but please report back here on whether you are successful or not on getting the B-2.