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I was born in London. I went to the US as a child, my mother decided to make it a permanent move, so I became illegal.

I graduated high school and when Obama came into office I was able to get DACA, I got a work permit, social, and my driver's license. I have 3 kids that were all born in the US. I continued to renew my work permit up until a few months ago when I moved back to London with my kids.

However, when I left the US my work permit was still valid. It has now expired , I applied for an ESTA almost a month after my work permit expired and it was approved, so I've bought tickets for my kids and I to go visit next week.

I know when you apply for ESTA it tells you that the immigration officer has the final say when you make it into the US. So my question, is do you think I will have any issues once we arrive in the US?

From the comments, the OP has their mother and job in the UK and plans to go to the USA for just a week.

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    When you completed the ESTA application, what answer did you give for the question "Have you ever stayed in the United States longer than the admission period granted to you by the U.S. government?" How old were you when your DACA deferral took effect?
    – phoog
    Commented Oct 11, 2019 at 15:40
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    In a comment to a now-deleted answer, you wrote "they have british passports ... but i applied for Esta for them and they were all approved." US citizens are required by US law to have US passports when traveling to the US, but there is no penalty for violating the law, and for children who've never had US passports there may not be too much trouble. However, if the US immigration officer notices the US place of birth in the passports, there may be some delay for related questioning, perhaps just a minute or two, but possibly longer.
    – phoog
    Commented Oct 11, 2019 at 18:01

1 Answer 1

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DO NOT ATTEMPT TO TRAVEL TO THE US USING THE VISA WAIVER PROGRAM

If you have previously overstayed in the US on the visa waiver program, then you are no longer eligible for the visa waiver program (see 8 USC §1187(a)(7)). If your ESTA was approved, it is because you lied when applying for it. If you attempt to travel to the US under the visa waiver program, then you will likely face serious consequences including deportation and a lifetime ban from returning to the US. You may even be prevented from boarding your flight. You should obtain a visa to travel to the US.

There is also the question of whether you are eligible for a visa: You need to look at the law to see if you are an inadmissible alien (per 8 USC §1182(a)(9)). If you are an inadmissible alien, then you cannot be granted a visa or admitted to the US. This is not a matter of discretion -- you cannot plead your case to the consular officer or CBP officer. (However, it is possible to apply for a waiver of inadmissibility due to unlawful presence or obtain advance parole depending on your situation. Get a lawyer if you want to go this route, as it is complex.)

Here's the summary of inadmissibility due to unlawful presence:

  • If you accrued more than 180 days of unlawful presence in the US, then you are inadmissible for 3 years starting from the date of your departure.
  • If you accrued more than one year of unlawful presence, then you are inadmissible for 10 years starting from the date of your departure.
  • However, unlawful presence does not accumulate while you are under 18 or while you have DACA.

If you obtained DACA before you turned 18 or within 180 days of turning 18, then you are not inadmissible. (I'm assuming your DACA did not lapse after you obtained it.)

If you obtained DACA before you turned 19 and it has been 3 years or more since you left the US, then you are not inadmissible.

If it has been 10 years or more since you left the US, then you are not inadmissible.

Note that there are other grounds for inadmissibility (I'm only considering inadmissibility due to unlawful presence), so if you, say, engaged in unauthorized employment or were ordered removed, then you may be inadmissible due to that.

Just because you are not inadmissible does not mean that you will be granted a visa or be admitted. It is still a matter of discretion. You will need to present compelling evidence that you will not overstay again in order to obtain a visa and be admitted.

When applying for a visa you may also need to explain why on your ESTA application you answered "No" to "Have you ever stayed in the United States longer than the admission period granted to you by the U.S. government?."

Please note that the consequences of US immigration fraud are severe. And improper use of the visa waiver program may count as fraud. One day, when your children are adults, they might want to sponsor a green card for you to legally immigrate to the US. Your previous overstay will likely be forgiven, but fraud will not be forgiven.

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    "If you have previously overstayed in the US, then you are not eligible for the visa waiver program (see 8 USC §1187(a)(7))" Technically, that section says that if you overstayed on VWP previously (not overstay in general), you are not eligible to use VWP again. The OP didn't say in the question that they entered on VWP (as opposed to a visa) when they were a child, though I guess there is a good chance that they entered on VWP if they were just visiting, given that they are British.
    – user102008
    Commented Oct 11, 2019 at 18:35
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    @user102008 That is technically correct. However, the question on the ESTA application has no such restriction.
    – Thomas Steinke
    Commented Oct 11, 2019 at 18:39
  • When we went to the US back in the day , there was no ESTA it was before 9/11 happened. British citizens didn’t need anything to travel to the US
    – mylife
    Commented Oct 12, 2019 at 15:58

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