plasticassius

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.

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.

7 minutes ago, Boiler said:

I am very well aware of those figures but they are not relevant to this situation.

Ok, so the point is tangential. I was only replying to your comment. I didn't mean to be irritating. Have a good one.

7 minutes ago, Boiler said:

I have never come across denial rates for those who have previously overstayed.

 

I did not think they were published.

This is what I was quoting: https://travel.state.gov/content/dam/visas/Statistics/Non-Immigrant-Statistics/RefusalRates/FY22.pdf

8.5% is the denial rate for Czechia, a VWP country. It's not broken out by those who previously overstayed.

5 hours ago, SalishSea said:

You should just petition her.  I don't see her getting a B visa after overstaying the ESTA.

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.

8 hours ago, Boiler said:

 

It  can be difficult for someone from a VWP Country to get a B.

The denial rate here is 8.5%, so many people do get them. I also know quite a few people with them.

8 hours ago, Boiler said:

Less than 10 K3's are issued per year btw

Perhaps I got lost in the alphabet soup. I meant get a visa for someone married to a USC.

8 hours ago, Boiler said:

I doubt anything changed since her prior refusal and she  is accumulating a bad US record.

AFAIK, to get a B, you must apply even if previously denied. 

10 hours ago, millefleur said:

214(b) is for immigrant intent, basically she didn't overcome that. The previous ESTA overstay is a bad look for her case unfortunately. Since she is married to a USC, she can easily adjust status and stay in the US.

I would think that the totality of the case looks good. There's one mistake in around 10 trips over more than 30 years. If they approached driver's licenses like this, there wouldn't be many drivers. Perhaps, that's the point.

BTW, denying status adjustments would be possible too, no?

10 hours ago, millefleur said:

Very common. They are not required to consider or look at documents you bring to make their decision.

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.

Hello, I'm a USC living in Prague with my Czech wife and our kids aged 12 and 17. She tried to get a B1B2 visa in December of 2023 and was denied by 214(b). I can't quite figure out how to get around this problem.

Firstly, we do indeed want her to get a tourist visa even though a K3 shouldn't be a problem, because we don't plan to move any time soon. We've been together since around 2003, other than a few trips (6 to the US), we've spent the time living in Czechia where both of our children (12 and 17) were born and go to school. Her parents and brother also live nearby, and she has a job and is enrolled in continuing education.

My wife has had 10 year B1B2 visas in the past, and getting them had never a problem. Her last renewal was in 2008, after that, ESTAS were available in Czechia and were popularly known as "visa waivers." Without any real research, we assumed they worked the same as visas and went on a trip to the US in 2019, which went fine. In 2021, COVID was tailing off and it was possible to travel overseas again. Consulates were closed, so she got another ESTA and we went back, but this time for four months rather than the two months we'd gone each time before.

As we found out, this was an overstay for the ESTA, so another is no longer an option. However, I believe she should still be able to get a tourist visa. After this, her first attempt to get a B1B2 was June 2022, which was denied for 214(b). So, I did some research and found out that she needed to prove strong ties to Czechia, and we put together a package of documents detailing her parent's, brother's and our real estate here, the children's schools, and her job. None of that mattered, though because the consul didn't look at it,

I wasn't allowed at the interview, so I don't know in detail what was said, but one question my wife told me about was how she was able to travel when flying to the US was only allowed for USCs. The correct answer is that spouses of USCs were also allowed, although she didn't remember that at the time of the interview. Another question was who she knows in the US, and the correct answer was a number of people we'd met on prior trips. Unfortunately she replied no one, to which the consul said, but what about your husband's relatives? We had met my brother on one trip, but he's hardly the reason we travel there.

So, I have several thoughts: How do you convey strong ties to your home country when your supporting documentation doesn't get looked at? Is "proof" of strong ties even possible? Is it possible to add information to the DS-160 since the documents you bring don't get looked at? Is a 214(b) denial a kind of a catchall when the real reason lies elsewhere?

Thanks in advance for your help.