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I am in need of help if anyone has experience in this please let me know who to contact.

I am a German citizen and have traveled the USA on ESTA a lot since my at-the-time fiancée is from there. In 2017 I went there too, but this time I overstayed the 90 days, due to relationship issues. We sorted out the issues, we got married, my son and I then got a green card. We were told that this would also mean we are forgiven the overstay we did on the ESTA. I know that was wrong but like I said above we had our reasons why we wouldn't fly back then.

In 2019 my wife and I decided to move to Germany.

We submitted a form to voluntarily give up the green cards. We were at that point sure that we wouldn't need them since moving back to the USA was out of the question. We were sure that we could always travel there to visit family with an ESTA again. We applied for ESTA last November, and it was apporoved, and then we traveled there in December without problems. The only issue we had was that border control wanted to see our marriage certificate. I think that was because right now only close relatives of US citizens can travel.

So today we wanted to fly again but they denied us boarding. A gentleman from the consulate came and said we can't ever use ESTA again because of the overstay in 2017. But why did they let us travel then in December? He said that was a mistake. We need a tourist visa. It looks to me that is complicated to get since it requires a lot of documents. I really want to be able to fly to the USA as soon as possible. We wanted to travel there to support my brother in law who has cancer. I checked into emergency visas too but it looks those are only for funerals or other stuff which doesn't apply.

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    Welcome to TSE. What exactly is your question?
    – Traveller
    Commented May 20, 2021 at 21:51
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    For the question you do ask, the ESTA application asks you "Have you ever stayed in the United States longer than the admission period granted to you by the U.S. government?". How did you answer that? If you answered "No" that probably explains why it took them a while to figure out you were ineligible.
    – user38879
    Commented May 20, 2021 at 22:50
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    Getting a visa shouldn’t be too hard in your situation. I’d just get a B1/B2 visa as the easiest route.
    – JonathanReez ♦
    Commented May 21, 2021 at 3:00
  • The only possible answer to your question: the consulate. After having consulted a lawyer based in Germany and familiar with such cases (I guess there are some: due to relatively high number of US soldiers stationed in the country, I am statistically sure such a mess happened before and will happen again in the future).
    – EarlGrey
    Commented May 21, 2021 at 9:19
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    @J... There is a child. It looks like that information was edited out by another user. The other green card must have been for the child.
    – phoog
    Commented May 21, 2021 at 15:16

3 Answers 3

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I think they are correct that you are not eligible to use the Visa Waiver Program ever again. INA 217(a)(7) (8 USC 1187(a)(7)) says:

(a) Establishment of program

The Secretary of Homeland Security and the Secretary of State are authorized to establish a program (hereinafter in this section referred to as the “program”) under which the requirement of paragraph (7)(B)(i)(II) of section 1182(a) of this title may be waived by the Secretary of Homeland Security, in consultation with the Secretary of State and in accordance with this section, in the case of an alien who meets the following requirements:

(7) No previous violation

If the alien previously was admitted without a visa under this section, the alien must not have failed to comply with the conditions of any previous admission as such a nonimmigrant.

Since you previously violated the terms of the VWP, the US government is required by law to not let you use the VWP. The law doesn't seem to give any government agency or officer the discretion to give you any exception and allow you to use the VWP even if they wanted to. Like the consulate said, you can apply for a B2 visitor visa to visit the US.

Yes, they should not have allowed you to enter on the VWP last December too, and it seems like it was a mistake. Your having gotten in on the VWP doesn't prove anything about your eligibility for the VWP -- it could have been a mistake, and a mistake doesn't create new rights for you -- your eligibility must ultimately be determined from the laws and regulations, and here it seems from the law that you are clearly ineligible.

I think you were misled by an incorrect notion of "forgiveness". Neither marriage to a US citizen nor applying for or getting a green card provides any "forgiveness" of any past immigration violations. What you heard is probably a poor description of the fact that being out of status and illegal employment do not affect eligibility for Adjustment of Status (the process of getting a green card from within the US) for someone in the Immediate Relative category (spouse, parent, or unmarried under-21 child of a US citizen). There is no "forgiveness" involved -- any past violations and their consequences remain -- it is just that certain violations do not factor into the eligibility requirements for the Adjustment of Status for some types of applicants. It's like if someone with a DUI is eligible for food stamps -- it doesn't mean getting food stamps forgives the DUI -- it just means that the DUI didn't factor into the eligibility requirements of the food stamps; but if the DUI disqualifies you to drive a bus, then that restriction still remains.

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    I have upvoted the answer, but I wonder whether there's a better analogy than DUI, food stamps, and driving a bus. Food stamps are obviously not particularly relevant to driving, while adjustment of status and ESTA are both immigration benefits.
    – phoog
    Commented May 21, 2021 at 13:25
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    One thing I might add, is that there is no person or office to contact about an ESTA refusal. There is no recourse to appeal. So, it would need to be done outside of the normal procedures, aka a lawyer.
    – CGCampbell
    Commented May 21, 2021 at 16:46
  • @CGCampbell but because there is no avenue for appeal, a lawyer can't do much. The statute explicitly excludes ESTA denials from the jurisdiction of the courts; the only recourse one has after denial is to apply for a visa. A lawyer could perhaps make the case that the statute excluding ESTA denials from judicial review is invalid for some reason, but I suspect that such an argument wouldn't get very far.
    – phoog
    Commented Apr 3 at 9:30
  • In the case of an alien denied a waiver under the program by reason of a ground of inadmissibility described in section 1182(a) of this title that is discovered at the time of the alien’s application for the waiver or through the use of an automated electronic database required under subsection (a)(9), the alien may apply for a visa at an appropriate consular office outside the United States. There shall be no other means of administrative or judicial review of such a denial, and no court or person otherwise shall have jurisdiction to consider any claim attacking the validity of such a denial.
    – phoog
    Commented Apr 3 at 9:41
  • The previous comment is 8 USC 1187(g) but it consumed the entire character limit so I couldn't include the citation. Also see 8 USC 1187(h)(3)(C)(iv): Notwithstanding any other provision of law, no court shall have jurisdiction to review an eligibility determination under the System.
    – phoog
    Commented Apr 3 at 9:43
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You could contact a lawyer and attempt to challenge this. However that will not be quick or cheap and, as user102008 says, unlikely to succeed.

The best way is to apply for the visa. If you are stable and settled in Germany you will probably be granted a multi year visa, which is no more difficult to use than the VWP. This is the usual situation for people denied VWP use for technical reasons. Such visas can be expedited if you need to travel urgently.

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    A good lawyer ought to refuse the case for the reasons outlined in user102008's answer, but asking a lawyer should provide more certainty than answers from the internet.
    – phoog
    Commented May 21, 2021 at 13:27
  • Under this situation, I would also recommend to apply for B1/B2 visas. My guess is that, at the interview if you explain things well, the consulate or embassy might give something like 5 or 10 year long visa. It could be better than applying for ESTA every 2 years.
    – Jinhyun Park
    Commented May 21, 2021 at 13:46
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    A lawyer is almost useless in attempting to challenge the decision on the ESTA, but it can surely help with the visa application. To the OP: better get ready for the future, rather than fighting the past.
    – EarlGrey
    Commented May 21, 2021 at 14:46
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If you were told getting a green card would “forgive” your overstay, you were mis-informed. What you should have been told is that the overstay was irrelevant to a green card holder’s admissibility.

Admission is basically a determination of whether you will leave and not try to stay and/or work in the US without permission. When you had a green card, it was impossible for you to stay or work without permission, you had permission.

As an analogy, in a number of US States, the age of consent is 18, with an exception for married couples. Having sex in those states with someone 17 3/4 years old can land you in jail, if you’re not married to them. During the marriage, sex is legal in all states. If you get a divorce or annulment before that persons 18th birthday, the exception no longer applies. There’s no ex-spouse exception.

For admissibility, there’s no ex-green hard holder exception. While a green card hold you needed neither a visa nor a visa waiver, you are no longer a green card holder and no longer eligible for a waiver. You can try for a visa

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