4

As the subject suggests I overstayed a work visa to the US in 1994, the exact overstay would have been less than 2 weeks, I have not re-entered since however I am looking at going back this year for a 2 week holiday.

At the time my daughter was 5 years old and so listed on my passport and visa. When she revisited the US in 2009 she was stopped in immigration. Not refused, just asked a couple of questions and then carried on. She has since applied for a redress number and has been a few times with no issues.

I have read a lot about a 10 year ban. Is this automatically added? I.e. I will have served mine now? I understand that you only start accruing those 10 years from the age of 18 which is why my daughter was stopped?

If I am over the 10 years can I apply for ESTA and answer no to the "have you overstayed" question?

Is there anyway of actually checking my status in their system?

Thank you

4

The automatic bans start at 180 days of unlawful presence, and you only have two weeks, so no automatic ban. Your daughter had no unlawful presence at all because of her age. See Unlawful Presence and Bars to Admissibility.

However, a record of overstay by itself creates a suspicion that you may overstay in the future. That is probably why your daughter was questioned. Be prepared to be questioned any time you try to visit the US, and bring evidence, in your carry-on, that you are going to leave the US on time.

Regardless of how long ago it was, answer "yes" to "Have you overstayed?". In general, every question must be taken literally and answered as asked. If they meant "Have you overstayed in the last 10 years?" they would ask that.

As @phoog pointed out in a comment, your ESTA application will probably be denied, but it is worth trying given the low cost of a denied application, currently $4. If your overstay had been on the Visa Waiver Program, rather than an actual visa, you would be barred from using the VWP.

If your ESTA application is denied, you can apply for a Visitor Visa. Again, you will need the best evidence you can assemble that you will leave the US on time. The very short duration of the overstay and the time since then are both in your favor.

| improve this answer | |
  • Hi, thank you for your response. Answering "yes" to the overstayed question would result in an automatic denial of the ESTA wouldn't it? – Florencia Jan 21 at 16:10
  • @Florencia So apply for a visa instead of ESTA. – Patricia Shanahan Jan 21 at 16:19
  • 1
    @Florencia it's possible that your ESTA would be approved after you answer "yes" to that question. I do agree that it's extremely unlikely, but we really don't know for sure. If the ESTA is approved even though you answered "yes," you can be that much more confident in flying to the US. If your ESTA is not approved, you will be out $4 (an approved ESTA costs $14 because of an additional $10 fee that is added only if the application is approved). Note however that if you didn't have a visa but were using the VWP (with a green I-94) then you really are statutorily ineligible to use the VWP. – phoog Jan 21 at 16:36
  • @phoog I would like to merge some of your comment into my answer. Is that OK, or would you prefer to write your own answer? – Patricia Shanahan Jan 21 at 17:10
  • @PatriciaShanahan please do. Attribution is always appreciated. – phoog Jan 21 at 17:11

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.