Visa Waiver program and voluntary departure

kylera

New Member
If a person left the United States via voluntary departure in 2004 and his country of citizenship became a member of the Visa Waiver program in 2008, what does this mean for him? Can he re-enter the United States again without complications?
 
Some complications but re-entry is possible..

Hi.. I'm not a lawyer, but have researched this a fair bit recently as is relevant to me. I welcome any comments from immigration lawyers on anything I've said below.

Ok, from what I've gathered, the answer is:

You are barred from re-entry after voluntary departure, under INA 212(a)(9)(B)(i), IF YOU WERE UNLAWFULLY PRESENT IN THE US FOR MORE THAN 180 DAYS. (Post visa-waiver, that would mean 180 days after the 90 day lawful visit period/ Pre visa-waiver - your case - that would mean 180 days after the expiration of whatever visa you entered the US on before your 2004 departure).

IF YOUR OVERSTAY WAS LESS THAN ONE YEAR, the bar is for 3 years (from the date you departed I think). However, if your overstay was for ONE YEAR OR MORE the bar is for 10 years.

[I'd note that for anyone who voluntarily departed pre-1996, I don't think these rules apply.. see below].

So, you may already be eligible for re-entry, or if not, will have to wait until 2014.

HOWEVER, once eligible, I'd suggest applying for a visa, rather than attempting to use visa waiver. There's a question you'll need to answer on the green entry form about having been excluded and deported, and although you were NOT DEPORTED, I suspect they might consider the 3 or 10 year ban to be considered exclusion (a lawyer will have to confirm this). It's better to discuss that at your local consulate before you buy air tickets rather than having to explain it on arrival at a US port. (Note: Even with a visa, border officers can still refuse entry if they think you're likely to overstay).

If you overstayed LESS THAN 180 DAYS (or voluntarily departed pre-1996) and were therefore not barred, then theoretically, you are eligible for visa waiver, but don't bank on having no complications as border officers seem not to know the law on this and may dispute it (as per my own recent drama). Again, I'd suggest getting a visa so you can deal with any questions in your local consulate.

To be clear though, people in this latter situation were NOT EXCLUDED and theoretically should not state that they were in answer to question (d) on their entry form. I've checked this with a US immigration lawyer. The challenge is to convince border officers of this, because they're now pulling up past processes with the fingerprints, etc. I'm currently seeking to have some kind of letter or annotation to my file, to confirm the law on this matter.

I have some useful references on this stuff that I can't post here yet as this is my first post, but am happy to pass on if anyone's interested.
 
I had a British friend who arrived in the US under WFP one summer a few years back. He was under the impression he could stay for three months, however the rule is 90 days. Since both July and August have 31 days, he over-stayed by 2 days. During his following visit several months later, he was detained for several hours on arrival because of his previous visit. He was allowed in the country but was advised that in the future he would need a tourist visa the next 10 years.
Last I heard, he was not able to obtain a US visa.
 
Technically they're correct.. (see below; though I'm not sure where the 10 year thing comes from; this is not the same as the ban from re-entry as per above; it's just a ban from VWP) but I don't see how this level of pedantry serves anyone's interest.. You're friend obviously made a very minor honest mistake.. the evidence being that he left at 3 months!

In a rational world they'd waive the ban on VWP for him. But from what you're saying, they're now refusing him even a visa! This seems wrong. Perhaps he should consider consulting a US Immigration lawyer (most will do initial consultations free and by phone). He could first try to address it through DHS/TRIP (google that) .. he might at least be able to get a visa that way..

I'd note that your friend did not exit via a voluntary departure plea (obviously). The reason that he is technically excluded now from VW entry is that he technically breached the VWP.

On that point, I NEED TO CORRECT MY POST above..

If you overstayed a visa (not VWP) less than 180 days (or voluntarily departed pre-1996) and are therefore not subject to the 3 or 10 year re-entry exclusions, then theoretically, you are eligible for visa waiver (though they don't all know the law and also can take into account any prior visa breach when deciding about allowing entry; the upshot is... get a visa if you can).

However, if you overstayed on VWP for any length of time at all, you have breached the conditions of the program and are therefore ineligible to use VWP (see the VWP site).

Either way, the distinction may be academic.. Applying for a visa is the best way to have your individual circumstances assessed and if granted - though not a guarantee of entry at a US border - is prima facie evidence that your prior records have been reviewed and you had no existing visa ineligibilities. If there are difficulties getting the visa, it's better to find out - and possibly challenge it - in your home country than face refusal and unpleasant experiences at a point of entry.
 
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