B1B2 denied for 214(b), how do you overcome this?

[beloved_dingo 1,932]

That one overstay basically made all her previous "good" travel history irrelevant. Just to reiterate the point already made by others, overstaying on the ESTA was a huge mistake, and she is unfortunately experiencing the consequences of that mistake. 

 

I don't want to hammer too hard on it, but I don't understand how this overstay even occurred. Did you both misunderstand her period of authorized stay? If I recall correctly, CBP literally writes the date on the passport stamp showing the exact end date of allowable time in the U.S., and the max stay allowed on ESTA is 90 days. Staying even one day over can have detrimental consequences on a person's ability to keep their ESTA or visit the U.S. ever again.

 

There's no guarantee that she'll be able to get a tourist visa again. It is possible that with time, she can get approved.

[Boiler 43,440]

ESTA is good for 2 years.

 

VWP is 90 days and automatic disqualification if you overstay, apart from anything else you need a return ticket or onward travel within those 90 days so I assume the return flight was rearranged.

 

I agree there is no way you could not know.

[chrissandra 59]

8 hours ago, plasticassius said:

Perhaps, but getting her a GC would mean a lot of financial reorganization like dealing with bank accounts and tax returns in addition to all of the visa paperwork. It hardly seems worthwhile for a vist to the US every 2 or 3 years when we can just go somewhere else.

I’m not sure GC is an option for a few reasons. In order for it to be approved you would need to move to the USA and live here. Proof of domicile is required .
And for your wife’s GC not to be cancelled, she would need to actually live in the USA. 
 

none of which you said you wanted. 
you may be correct, it’s not only not worth while but it is not plausible. Maybe, down the road, if you decide to move to the USA…

 

good luck with your journey 
 

 

[Boiler 43,440]

It will take a long time and cost by getting a GC, using it as long as you can, surrendering and then filing for a B could work.

[SalishSea 16,774]

15 hours ago, plasticassius said:

Perhaps, but getting her a GC would mean a lot of financial reorganization like dealing with bank accounts and tax returns in addition to all of the visa paperwork. It hardly seems worthwhile for a vist to the US every 2 or 3 years when we can just go somewhere else.

See Carmel's comment for a clear explanation of the reason.

[SalishSea 16,774]

15 hours ago, plasticassius said:

Perhaps it's not supposed to make sense, but what I don't get is how can you overcome immigrant intent? They didn't look at documents, and didn't allow for making a case verbally.

In this case, the very best evidence of not having immigrant intent would have been to not previously overstay.

[plasticassius 1]

Yesterday I ran out of postings allowed, so today I'll condense everything into fewer posts.

On 2/27/2024 at 1:06 PM, Boiler said:

It was very silly to overstay the VWP, so the question is with all these issues will she ever get a visitor visa.

Ok, silly and careless, but entirely accidental.

On 2/27/2024 at 1:06 PM, Boiler said:

The only think I can think of is time, give it a few years and try again?

It seems that's the most reasonable thing to do.

On 2/27/2024 at 1:30 PM, carmel34 said:

There are only two options:  IR-1, spousal visa, which is for immigrating to the USA to live permanently with you, and B-2 tourist visa, for temporary visits for which she was denied.  ESTA is gone forever because of the overstay which is a permanent stain on her record, and an indication of high immigrant intent.

I can accept that overstaying an ESTA looks bad. However, I can't swallow the logic of how it's an indication of high immigrant intent. If I wanted to immigrate, I would use an immigrant visa like IR-1 especially since it seems like a straightforward way to go. Also, if I was going to use an ESTA to immigrate, I would do just that and stay! It makes no sense to stay a little extra time and then go back.

 

I guess that looking for logic in this is a mistake.

On 2/27/2024 at 1:30 PM, carmel34 said:

As a US citizen, you are required to file federal income taxes in the US with the IRS regardless of where you live.

That's true, but what I was trying to say is that all US persons including GC holders are subject to the same regulations, including filing tax returns with the IRS as well as bank account reports with Treasury.

 

Thus, by getting M a GC, she would be subject to all of that, and for 7 years after relinquishing the GC. Unless she was covered, then it's essentially required for life.

23 hours ago, appleblossom said:

I think you're underestimating how big a mistake that was though. She is very unlikely to be granted a visa now having shown she ignored immigration laws previously, particularly with a USC spouse. 

 

As said above, leave it for a few years then try again, you never know. 

 

Good luck.

Thanks, I agree that leaving it for a few years is for the best for now.

23 hours ago, millefleur said:

Waiting for a good long while and applying again is really all you can do. With visitor visas, there's no other recourse. You can't appeal the decision in any way, frustrating as it is.

yes...

23 hours ago, millefleur said:

There is one other way to show no immigrant intent, and that is to file for the spousal visa and then have her relinquish the green card showing she truly has no intention to live in the US. 

This is an interesting idea, but it has the potential for unexpected consequences (like with the IRS and Treasury).

21 hours ago, beloved_dingo said:

I don't want to hammer too hard on it, but I don't understand how this overstay even occurred. Did you both misunderstand her period of authorized stay? If I recall correctly, CBP literally writes the date on the passport stamp showing the exact end date of allowable time in the U.S., and the max stay allowed on ESTA is 90 days. Staying even one day over can have detrimental consequences on a person's ability to keep their ESTA or visit the U.S. ever again.

Yes, we both misunderstood the period of authorized stay. M had traveled on a B visa over a period of 30 years and the allowed stay was 6 months. So, we didn't expect the ESTA would be any different, especially since it was called a "visa waiver." It sounded like it would be the same as a visa.

 

We didn't look at the stamp until they sent an email saying that the ESTA was cancelled. Ironically, the longest stay we ever had on the B visa was for 2 months.

21 hours ago, Boiler said:

ESTA is good for 2 years.

 

VWP is 90 days and automatic disqualification if you overstay, apart from anything else you need a return ticket or onward travel within those 90 days so I assume the return flight was rearranged.

Well, we never did change the flight, and I doubt that we could have changed the return flight since by that time they had lifted the flying ban and all of the flights were severely overbooked.

21 hours ago, Boiler said:

I agree there is no way you could not know.

Maybe you've spent so much going over US visa details that it seems impossible to know. But, to our detriment, we didn't know.

 

Also, on this particular trip, we spent an inordinate amount of time and effort on researching COVID tests, travel restrictions and related paperwork that the visa issues seemed simple and not worth any attention.

20 hours ago, chrissandra said:

I’m not sure GC is an option for a few reasons. In order for it to be approved you would need to move to the USA and live here. Proof of domicile is required .
And for your wife’s GC not to be cancelled, she would need to actually live in the USA.

If the GC requires holders to live in the US, that's another big problem for us.

20 hours ago, chrissandra said:

none of which you said you wanted. 
you may be correct, it’s not only not worth while but it is not plausible. Maybe, down the road, if you decide to move to the USA…

 

good luck with your journey 

Thanks

19 hours ago, Boiler said:

It will take a long time and cost by getting a GC, using it as long as you can, surrendering and then filing for a B could work.

This still seems impractical, but perhaps it'll seem different later.

13 hours ago, SalishSea said:

In this case, the very best evidence of not having immigrant intent would have been to not previously overstay.

Again, I imagine this is right. But I do have trouble with the logical of it.

[Boiler 43,440]

https://esta.cbp.dhs.gov/

 

WHO SHOULD APPLY?

• You are a citizen or eligible national of a Visa Waiver Program country.
• You are currently not in possession of a visitor's visa.
• Your travel is for 90 days or less.
• You plan to travel to the United States for business or pleasure.
• You want to apply for a new authorization for one person or a group of applications for two or more persons.

 

It is the first thing you see.

 

Anyway there are two issues, the being married to a USC is more immigrant intent, now that can be assuaged.

 

The issue here is that she ignored the restrictions on her prior entry and why should they trust her again? I seriously would not go down the we did not know route.

 

 

[millefleur 5,035]

33 minutes ago, plasticassius said:

That's true, but what I was trying to say is that all US persons including GC holders are subject to the same regulations, including filing tax returns with the IRS as well as bank account reports with Treasury.

 

Thus, by getting M a GC, she would be subject to all of that, and for 7 years after relinquishing the GC. Unless she was covered, then it's essentially required for life.

What do you mean by "covered" and required for life? I'm not familiar with this. I know there is an exit tax for very high earners, but never heard of it being required for life.

[plasticassius 1]

14 hours ago, Boiler said:

https://esta.cbp.dhs.gov/

 

WHO SHOULD APPLY?

• You are a citizen or eligible national of a Visa Waiver Program country.
• You are currently not in possession of a visitor's visa.
• Your travel is for 90 days or less.
• You plan to travel to the United States for business or pleasure.
• You want to apply for a new authorization for one person or a group of applications for two or more persons.

 

It is the first thing you see.

Respectfully, it is not the first thing I see. Where I open that link, I see a button with "CREATE NEW APPLICATION" on it. If you click on that, you never get to the part you mention above.

14 hours ago, Boiler said:

Anyway there are two issues, the being married to a USC is more immigrant intent, now that can be assuaged.

 

The issue here is that she ignored the restrictions on her prior entry and why should they trust her again? I seriously would not go down the we did not know route.

We are not going down any "we did not know route," the question of why we overstayed never came up in a visa application or during the interview.

 

I'm writing this only in response to your and other's comments here with the knowledge that you're not likely to believe me. BTW, there were other issues after we were there, such as no flights available after the fly ban was lifted and our older daughter getting mono while we were there.

 

Anyway, thanks for the comments, I do appreciate this brainstorming. I've also been thinking that the denial is not really due to immigrant intent, but the overstay.

13 hours ago, millefleur said:

What do you mean by "covered" and required for life? I'm not familiar with this. I know there is an exit tax for very high earners, but never heard of it being required for life.

This is getting off topic, but I know a bit more about this than visa requirements since I have known expats who've fallen into this trap:

 

https://www.irs.gov/individuals/international-taxpayers/expatriation-tax

 

Expatriation tax is required of anyone relinquishing citizenship or residency (GC). It's a tax on financial assets among other things, but including securities and retirement plans. Expats are covered if they are high earners, but also if they fail to properly file the expat tax form or tax returns for the previous 5 years.

 

I know someone who recently moved to Gibraltar and gave up his GC. He's being requested by banks to provide 5 years of tax transcripts certified by the IRS to prove he expatriated properly. This is on top of US persons getting refused by many banks due to FATCA.

 

On a more topical note... I thought again about the interview question about how was M able to fly during the fly ban, and that perhaps this was also seen as another ESTA abuse, that she should have had a different visa to fly.

[Boiler 43,440]

It is on the first page saying who is eligible, the vast majority of the world population are not.

 

Anyway this is her application not yours, it seems the Czech Republic was added in 2008. I do not remember a time before the VWP, I always entered on it before moving.

 

She would have been asked how long she was staying, I always was, and would have had a return ticket, one of the requirements. In all my years I have never seen someone suggest they did not know about the 90 days, well some refer to 3 months.

 

Anyway what is done is done.

[millefleur 5,035]

7 hours ago, plasticassius said:

Anyway, thanks for the comments, I do appreciate this brainstorming. I've also been thinking that the denial is not really due to immigrant intent, but the overstay.

It's both as the overstay implies the intent in this case. I know it seems odd but the US government just takes a draconian approach based on so many people in the past who abused visas. 

 

7 hours ago, plasticassius said:

Expatriation tax is required of anyone relinquishing citizenship or residency (GC). It's a tax on financial assets among other things, but including securities and retirement plans. Expats are covered if they are high earners, but also if they fail to properly file the expat tax form or tax returns for the previous 5 years.

OK that's the same thing I was familiar with, just wasn't aware of the details. Thanks for clarifying. You're right that this is a burden of going the whole immigrant visa route and then relinquishing the green card. Everyone here just suggested it as we don't see any other way to overcome the immigrant intent (i.e. that she will just continue to overstay) if given a new visitor visa.