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Overstay/10-year bar and DV lottery

lully

lully

New Member
Hello everyone,

I'm one of the lucky selectees for the DV2017.
Unfortunately, I made a foolish mistake over 15 years ago... overstayed my I-94 and due to circumstances beyond my control, I was not able to leave for a couple years. When I was finally able to go back home, I did not return to the US for 10 years.
When I applied for an ESTA to go back to the US (10 years later), it was approved immediately and I was then able to go back to the US several times during the year... 3 weeks max each time.

Do I still have a chance to get disqualified from the lottery? I have a pretty low case number so if it weren't for my overstay, I would have a very good chance of getting a Green Card...

Thank you for your input!
 
It seems to me like you will be okay since you've completed your 10 year ban following which you also got approved for ESTA.

Just be sure to have the necessary evidence proving you stayed out of the US for 10 tens following the over stay.
 
It's weird that you got an ESTA. Someone who previously overstayed is generally not eligible for the Visa Waiver Program. Did you disclose the overstay as asked on the ESTA application?

Anyway, the overstay should not have any effect on an immigrant visa application now.
 
newacct said:
It's weird that you got an ESTA. Someone who previously overstayed is generally not eligible for the Visa Waiver Program. Did you disclose the overstay as asked on the ESTA application?

Anyway, the overstay should not have any effect on an immigrant visa application now.
Click to expand...

That's an interesting question I think. Everything I have seen says you are never allowed to use VWP again after a ban, assuming that the overstay was also on VWP though. I'm not clear how it works if the initial overstay was on a visa. OP did not specify if she entered on visa or VWP before the overstay.

Question, if this is applicable and the OP did not disclose the overstay...could that be a problem, ie the misrepresentation on the ESTA application? (as OP has not answered newacct it is not clear if this is applicable or not though)
 
Susie, Newacct,

I never got caught. There was no official ban. I inflicted the 10-year ban upon myself.
I have disclosed it in my DS-260 but I'm not sure my overstay was ever on record to begin with...
As for the ESTA, there is no question about overstay at all.
 
The system that tracks entries and exists was improved in 2002. Prior to that, there was poor record keeping so it is possible that a previous entry and exit record wasn't captured correctly. In that case a person may not have become subject to a ban and would be "under the radar".
 
lully said:
As for the ESTA, there is no question about overstay at all.
Click to expand...

I find this on an ESTA form, under traveller eligibility questions:
F: Have you ever stayed in the U.S. longer than the admission period granted to you by the U.S. government?
 
lully said:
I checked mine earlier, Susie, there was no such question I assure you.
Click to expand...

Interesting, when did you fill it in? I looked at 3 different samples and they all have it in the list of traveller eligibility questions, right after the question asking if you have ever had a US visa denied or cancelled.

Well, I suppose if your form somehow didn't have it then you can't be accused of misrepresentation and should probably be OK.
 
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I filled it in in 2012...
 

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I guess it was okay back then, but if you apply for an ESTA now, you might be denied. Anyway, the answer to your question is that it should have no effect on your immigrant visa application.
 
I just checked the website for the US Embassy in Paris and the ESTA questions they list are exactly the same as those I posted above...

Anyway, I found this in INA ACT 212(a)(9)(B)
(i)In general.-Any alien (other than an alien lawfully admitted for permanent residence) who-
(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States is inadmissible.

Doesn't this make me eligible or am I misinterpreting it?
 
The ban was over so it is not relevant. But not having a ban doesn't mean you will get a visa or ESTA.
 
Most nonimmigrant visas and statuses, including visitor and student visas, are subject to INA 214(b), the presumption of immigrant intent, which is completely at the discretion of the consular or immigration officer. When I say you will not necessarily get a visa, I mean there is always the possibility of denial under 214(b). Any amount of overstay could be a negative factor, and even if you never overstayed, if they think you spent too much time in the US recently or something, that could still be a factor in denying you a visa or entry. Even completely upstanding people who have never done anything problematic are routinely denied visitor visas for this reason just because the consular officer feels their ties to home are not good enough.

However, immigrant intent is not an issue for immigrant visas. To deny an immigrant visa, they would generally need a specific inadmissibility.
 
I presume you have proof of when you left the US initially , so that the consulate can be certain the 10-year period is over. Seeing as that question was not asked on your ESTA, they can't just use the fact that you've been back as a visitor as proof of that.
 
Actually I do not have proof of my departure (no stamp when you leave the US and I've looked for my plane ticket but wasn't able to find it yet but still looking).
However, I passed an official (school) exam a few days after I came back so I can prove I did not return before the 10 years had passed.
 
and if this and my previous passport are not enough proof, I have all my school transcripts and degrees, bills, loan, bank statements and work contracts.
and If it still doesn't work out, at least I'll know I tried...
 
Other forums I've read where people have similar issues advise them to bring proof of departure - of course a number are in the same situation as you with no stamp and ticket or boarding card long lost. Sounds like you have enough to show you were no longer living in the US.
 
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