42

I have a particular situation here, In March of 1997 I travelled to the US as a tourist and lived there illegally for almost 9 years. I was never arrested, or had any trouble with the law, I was never deported. I paid my taxed (had a TFN) had a job, bank account bought a house, etc. About 9 years ago I decided to leave as I was tired of living like that, not able to be legal, in fear of deportation and loosing everything. I also got married (to a person in the exact situation as me) we were able to legally migrate to Australia and now we are Australian citizens. We never returned our I-94s and in 2005 left through Mexico (walked through the border) so there are no records of us ever leaving. We have lived here in Australia for over 9 years.

OK so my question is... We have been thinking we would like to visit our friends and family back in the US now that we have a little girl. Is there any chance they won't let us in because they know we overstayed? We would be travelling with our Australian passports.

  • 9
    Of course there's a chance. Isn't there always? But, applying common sense, it seems it's not likely. Can't you simply claim you're not the same person as the one that lived in the US for nine years? (Also, I'm amazed that an illegal alien can pay taxes in the US.) – MastaBaba Feb 22 '15 at 4:12
  • 19
    It's immigration roulette time. Unique circumstances. Does a statute of limitations come into play? I doubt the internet, even the vaunted authorities in Stack Exchange will give you anything other than a guess. What if the consensus says NO. Will you be satisfied? You'll need a consultation with a US lawyer. Or alternatively play immigration roulette at the border and see what happens. Emphatically recommend avoiding anything the implicates you further, like making up a story. – Gayot Fow Feb 22 '15 at 5:06
  • 13
    @MastaBaba Didn't know that about Europe. In the US, those databases are specifically not linked -- federal law and IRS confidentiality rules specifically say that IRS returns are not to be shared with other government agencies except in specific circumstances, because the government wants to encourage people to pay taxes regardless of whether they broke any laws. – cpast Feb 22 '15 at 20:14
  • 4
    @AngieN If you can remember, if you do make the effort and make the trip, come back and submit your own answer showing what you did and what was said. – CGCampbell Feb 23 '15 at 17:16
  • 8
    @AngieN ! you never updated !! – Fattie Nov 22 '16 at 16:20
45

I know somebody in a similar situation to you: she lived illegally in the US for some years, and many years later she wanted to return as a tourist. Although she would otherwise have been eligible for the Visa Waiver Program, her local US Consulate recommended that she apply for a visa because of her history. She got a visa and visited the US without any problems.

When applying for the visa you will be asked whether you have ever overstayed in the past; you can answer yes to this and still get a visa, but if you lie and get found out you almost certainly won't.

22

You don't qualify for the Visa Waiver Program because you've overstayed. When you apply for the ESTA it will ask you if you've overstayed. If you apply for a visa, it will also ask if you've overstayed. So they will know that you have overstayed; you being Australian now doesn't change that. If you lie, that is misrepresenting a material fact and will lead to very serious consequences, e.g. a lifetime ban.

You probably have a 10-year ban due to unlawful presence. "Unlawful presence" is somewhat complicated, but generally if you exceed the date on the I-94, you start accruing unlawful presence. But you don't accrue while under 18. From your comments, it wasn't clear but it seemed like you were saying you went to the U.S. when you were almost 18. So you likely accrued many years of "unlawful presence". If you have more than 1 year of unlawful presence, and the leave the U.S., you have a 10-year ban starting from when you left. If you want to visit the U.S. during this 10 years, it's possible to get a waiver for the ban. Since you've left for almost 10 years, the ban is almost over.

Even if you don't have a ban, that doesn't mean you will get a visa. Your history of overstay can adversely affect their decision. In any case, since you are applying for a nonimmigrant visa, the procedure is the same no matter if you have a ban or not -- you simply apply for the visa at a U.S. consulate. If you are still under the ban, then they will apply for a waiver as part of the process.

  • 1
    @pnuts Presumably, the OP knows when they left, and will have to supply that information on a visa application. Their physical presence in the US will have left traces in public records, such as home ownership, so lying would be counter-productive as well as unethical. – Patricia Shanahan Jun 6 '16 at 11:47
11

The answer is no. You can not return for 10 years if you over stayed for more than 12 months. You will need to apply for a new visa, have interviews to explain the situation. I went through a similar situation Got duped in to believing the man I was involved with would do the right thing, only to find out he was still married, I got sick and got stuck in the USA for 6 years. Applying for a new visa is tough these days, but if the reason is legitimate, they might approve it. I asked to visit my employer but was refused.

  • 4
    Hi and wemcome. Do you have any references for your claims? – JoErNanO Apr 1 '15 at 9:59
  • 2
    References? Oh man ... – Maître Peseur Jun 16 '15 at 11:15
  • that's an excellent "real-world example", thanks for that. – Fattie Apr 22 '16 at 17:08

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