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I am a UK citizen and I last entered the US in 1998 under the Visa Waiver Program.

I overstayed the maximum permitted time, leaving after approximately 21 months total stay. At no time was I contacted about my stay whilst there or upon leaving.

I have heard that this incurs a ten year travel ban, but if so, this should have expired by now. Unfortunately I cannot find concrete information and the US embassy told me there was no expiry to a travel ban but did not give me specific information to my own situation.

How can I find out if I will be permitted to enter the country again as a tourist, whether under visa waiver, or applying for a visa, or not at all? Will there be fees involved? I don't want to end up being denied at the point of entry.

Sorry if I have missed any needed info to answer this question.

  • Possible duplicate: travel.stackexchange.com/questions/43686/… – Jim MacKenzie Dec 12 '17 at 22:49
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    I don't believe this is a duplicate of the other question suggested - the poster of that question seemed to be asking his chances of getting caught and travelling under a different nationality inside the ten year exclusion period. I am simply asking how I can verify the US customs posture on my situation – David H Dec 12 '17 at 23:29
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    I wonder if they even know when you left at all. – Dronz Dec 13 '17 at 5:28
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    @Dronz, In those days they were using paper I-94W's. Either they got the I-94W back when he left, in which case they know when he left, or they didn't get it back, in which case they don't know when he left but he'll have been flagged as a suspected overstay based on the lack of the exit record. In the latter case he has some risk of being questioned about it to determine his eligibility to reenter under the VWP. – Dennis Dec 13 '17 at 19:44
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The ban is a matter of law based on the facts of your situation. You can look at the law and make your own determination about whether you are currently under a ban based on the facts of your situation. Various bans have various durations, specified in the law.

You can't ask the US government whether you currently have a ban -- in many cases they don't even know (e.g. you could have a criminal conviction abroad they don't know about that causes a ban for crimes, or they may not know exactly when you left because there is no record of people leaving by land so they can't determine whether you have an unlawful presence ban, etc.), until you try to apply for some benefit that requires you to be admissible (e.g. a visa or ESTA or entry), at which time they will examine the facts of your situation (which are asked about on various questions on the visa application, for example) to determine whether a ban currently exists according to the law.

Based on your description, you triggered an INA 212(a)(9)(B) 10-year unlawful presence ban when you left the US (in about 2000?) after having accrued more than 1 year of "unlawful presence". That ban would be long over and so is not relevant now. Nothing else from what you have said indicates you might have any other bans, but it's possible you may have other bans from issues you have not disclosed (e.g. criminal convictions, drug use, etc.).

Having overstayed on VWP in the past makes you ineligible to use the VWP ever again, according to INA 217(a)(7). So you must apply for a visitor visa to visit the US (unless you become a Canadian citizen, as they don't need US visas).

Not having a ban doesn't mean you will be able to get a visa and/or entry. Many foreigners who have no bans get denied visas and/or entry all the time. The officer can always deny visa and/or entry for the generic reason of "failing to overcome the presumption of immigrant intent". This determination is made anew each time you apply for a visa and cannot be predicted ahead of time.

  • I can’t for the life of me figure out what "failing to overcome the presumption of immigrant intent" is supposed to mean. Is that saying they will ban you from entering for a visit because you might want to come back some day to live there? – Thunderforge Dec 13 '17 at 6:52
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    @Thunderforge no, because you might want to not leave US. – Cœur Dec 13 '17 at 7:23
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    @Thunderforge "The presumption of immigrant intent" is the assumption that any non-resident who tries to enter the US is trying to live there. This means that immigration officers start every conversation with a non-resident with the assumption that the person is trying to become an illegal immigrant and will not let the person enter unless they can be convinced that this is not the case. The opposite situation would be a presumption of non-immigrant intent, in which case the officer would allow entry unless they found a reason to deny it. – David Richerby Dec 13 '17 at 9:47
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Some airports (including Dublin which is near you as you said you're in the UK) have pre-clearance facilities - this means you can clear customs and immigration before you fly, and find out if you will be denied entry before you arrive in the US.

From Dublin airport's webpage about this:

The US Pre-clearance (USCBP) facility at Terminal 2 in Dublin Airport is a purpose built facility that allows US bound passengers to undertake all US immigration, customs and agriculture inspections at Dublin Airport prior to departure.

and

Passengers arriving in the US are treated as domestic arrivals, allowing them to avoid immigration queues upon arrival and pick up their bags and go.

I thought you could try clearing customs first and buying a ticket afterwards if that is successful but (as Zach Lipton mentions) this would not be possible, but at least it would still save you 2 long unnecessary flights if you did get denied. But you should try to get a visa before you get to this stage anyway.

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    Hi and welcome to travel.stackexchange! It's not possible to go through preclearence without a ticket, but flying through Dublin is an option if you're unsure whether you'll be admitted to the US, as it at least saves you a long flight home if you have problems at the border. However, in this case, the OP should apply for a visa first. – Zach Lipton Dec 14 '17 at 8:33

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