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I have an overstay with a VWP of 333 days, I had to leave the US in January 2018 but stayed until December 2018 to take care of an American citizen who has no family. I have a 3 year ban. So I had to apply for a B2 visa, I have already done this twice and both have been refused. The woman at the embassy told me that I cannot get a visa as long as the 3-year ban lasts, only after those 3 years I can apply for a visa and a waiver. Is this true? Can I ask a waiver before I apply for a visa or do i have to wait until i have the B2? And which waiver should I ask?

marked as duplicate by Glorfindel, gmauch, user 56513, bytebuster, MadHatter May 11 at 11:34

This question has been asked before and already has an answer. If those answers do not fully address your question, please ask a new question.

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    Is this true? Why would the consular officer lie to you? Forget about a waiver, you are not getting one. Serve out your ban, and they hope they overlook your past transgression when you apply for the visa. – user 56513 May 10 at 13:25
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    @qechua This isn't a duplicate. This question is about dealing with a ban that is still in force; the question you link is about getting a visa after a ban has expired. – David Richerby May 10 at 15:10
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    As gently as this can be said, the only wa(i)ver you need is from yourself: wave goodbye to the USA for the rest of your life. You are not getting back. – chx May 10 at 20:12
  • I think that "I had to leave" should be reworded, such as "I was supposed to leave" or "my visa required to leave". "had to leave" implies that you actually did. – Acccumulation May 10 at 21:30
  • @user56513, it's possible for a consular officer to be mistaken. In this case, they aren't. – Mark May 10 at 22:08
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You have zero chance of getting into the US legally while the ban lasts. That's what a ban is.

You can apply for a visa after the ban has expired, but it's going to be difficult. Since you already overstayed once the US will apply a lot of scrutiny and skepticism to your application. Your best shot is to consult with a capable immigration lawyer and create a strategy that's specific to your case and situation.

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    Worth mentioning perhaps that continued applications for visas while banned will probably hurt the chances of getting a visa once the ban is over. – DJClayworth May 10 at 13:30
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    Additionally, the chance of getting in on the VWP in future is now exactly zero, since OP is now ineligible. – qechua May 10 at 13:40
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    If the ban can be waived, then presumably the chance is not literally zero, but I agree that it is effectively zero. – phoog May 10 at 15:44
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Forget about a waiver, you are not getting one. Serve out your ban, and then hope they overlook your past transgression when you apply for the visa. Going forward your chances of ever entering the USA on a non-immigrant visa are slim even after your ban is over.

Regarding the waiver, there is no form for this process. You would apply for a non-immigrant visa, and if denied solely due to a ban (and not due to immigrant intent), the visa officer may or may not recommend you for a non-immigrant waiver, which is adjudicated through the visa officer and consulate. In your case you did apply and clearly the visa officer did not feel like recommending you, so your case is dead.

Waiver of the Three- and Ten-Year Time Bars

A waiver is available to people who can demonstrate that if they are not granted the requested immigration benefit, such as a green card, their U.S. citizen or lawful permanent resident spouse or parents would suffer extreme hardship.

But extreme hardship is notoriously difficult to prove. It means demonstrating more than the hardship that any family member would feel upon facing separation due to denial of a visa. You’d want to be able to show severe financial, emotional, or medical consequences to one of your U.S. family members.

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    +1 Also, from the quoted wording, it sounds like it wasn't just a case of the visa officer not feeling like recommending the OP, but rather that the OP is entirely ineligible for a waiver. The OP makes no mention of a U.S. citizen or permanent resident spouse or parents. – reirab May 10 at 16:51
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only after those 3 years I can apply for a visa and a waiver. Is this true?

No, this is not true. After the ban is over in 3 years, you don't need (and can't get) a waiver because you have no ban to "waive" anymore. The point of a waiver is to waive a ban while you still have a ban.

Can I ask a waiver before I apply for a visa or do i have to wait until i have the B2?

Neither. You would apply for the visa, get denied, and then may or may not be recommended for a nonimmigrant waiver if you are denied solely due to the ban, and the officer who denied you will inform you about the process if they recommend it. However, given your history it is very likely that you will also be denied for immigrant intent, which would make waivers moot, since immigrant intent cannot be waived, so waiving the ban would be useless anyway.

  • You haven't addressed the question "And which waiver should I ask?" Assuming that the officer does not recommend the waiver, what waiver should the applicant ask about? The only waiver mentioned in the statute applies to immigrants who are close family of a US citizen or LPR. – phoog May 10 at 15:43
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    @phoog I take both this answer and user 56513's answer to mean that there is no waiver to ask about. The visa officer has to recommend you for it and, since they didn't, there's no further waiver possibility to ask about. – reirab May 10 at 16:53
  • @phoog: "The only waiver mentioned in the statute applies to immigrants who are close family of a US citizen or LPR." That's the immigrant waiver. The nonimmigrant waiver is provided in INA 212(d)(3)(A) and does not require hardship or any particular relatives. Yes, for a nonimmigrant waiver, you would normally need to be recommended by the visa officer, so, yes, if the officer does not recommend it, there is no waiver. (Technically, it is possible for the Department of State to recommend a waiver even if the officer doesn't; see 9 FAM 305.4-3(E)(2); but it is only for rare special situations) – user102008 May 10 at 17:52
  • "you don't need (and can't get) a waiver because you have no ban to "waive" anymore" Eh, the waiver is not versus a ban. It's versus a visa. A waiver is used to not need a visa, usually for up to 90 days. – Mast May 10 at 22:57
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    @Mast: I was talking about an inadmissibility waiver -- a waiver for a ban. The OP is ineligible to enter on the Visa Waiver Program forever. – user102008 May 10 at 23:49

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