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How do you know if you have a 10-year ban for overstaying in the USA?

I am English, married to an American for 4 years now. I am back in England now but I overstayed my visa briefly because of health issues, which has now brought me back home for treatment. My husband is still in the USA and we are trying to organise things so he can join me here.

I wanted to know if I can ever go back for a visit. Will I get a ban? I never had any issues with immigration coming back. No one mentioned my overstay.

I contacted the US embassy here in London and the only records they have of me is from a 6-month visa I had as a child living there with my family. No mention of my recent trip. I came over on an ESTA. Will the embassy not have a record of that?

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    Just a point of clairification - you entered the US under the Visa Waiver Program (travel.state.gov/content/visas/en/visit/…), not an ESTA. The ESTA only gives you permission to travel to the US, not permission to enter. – CMaster Jan 11 '16 at 11:21
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    And a question - did you, at any point, contact US Customs and Borders Protection to explain your health issues that made you unable to travel? – CMaster Jan 11 '16 at 11:22
  • Thank you. So I stayed on my non visa status over the 90 days the ESTA states you can stay for. I just need to know if I can re enter. And how do I know if I have a ban. – Samantha Jane Livesey Harrison Jan 11 '16 at 11:26
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    And they said what in response? – CMaster Jan 11 '16 at 11:41
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    @CMaster I don't really see what you mean. The US insists that ESTA is not a visa, but in fact it functions rather like a visa. So it seems to me that the only reason to avoid calling it a visa is to be consistent with US terminology. I don't think there's anything intrinsic about ESTA that prevents one from calling it a visa; apparently Australia's similar program is considered to be a visa. See border.gov.au/Trav/Visa-1/601-. That page begins with "This visa lets you visit Australia:" – phoog Jan 11 '16 at 15:51
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You are unlikely to be banned from the US for a short overstay where you did not breach other terms of your entry (ie you did not work or commit any criminal act). It is possible to receive an emergency extension to even VWP admission period if you have a good reason and contact the CBP. I am not sure if it possible to do this retrospectivly however.

Until (and if) you get a special dispensation for your health issues, you are however no longer eligible for use of the Visa Waiver Program (the scheme that you used to enter the US, which is not the ESTA - ESTA is permission to travel to the US, not enter in to it). The US CBP page on the Visa Waiver Program says under its requirements section:

Previous Compliance and No Prior Visa Ineligibilities

If you have had a U.S. visa before or previously traveled to the United States under the VWP or another status, you must have complied with the conditions of previous admissions to the United States, and you must not have previously been found ineligible for a U.S. visa.

So unless you were given dispensation to stay, you have not previously complied with your visa waiver and will need to apply for a visa for future vists to the US. If you do this, you would be advised to explain and provide documentation for why you previously overstayed. You will certanly find out at this point if you have been banned.

Nobody would have mentioned any of this on your departure from the US as the US does not have any exit immigration controls. You can however check your records for entries and exits under the VWP on the electronic I94 site.

You could also try to contact the CBP directly to inquire if you are banned, I am not aware of any automated way to inquire (and can find no obvious reference to visa/travel bans on their website).

  • @SamanthaJaneLiveseyHarrison Even though I didn't actually give you a way to find out about the ban? Also, added a link about what you should do if an emergency forces an overstay. – CMaster Jan 11 '16 at 14:32
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The only possible "ban" for your case is the unlawful presence ban (INA 212(a)(9)(B)). When you stay past the date on your I-94, you start accruing "unlawful presence", although if you were given satisfactory departure it may not count during that time. If you accrue 180 days of "unlawful presence" and then leave the US, you have a 3-year ban. If you accrue 1 year of "unlawful presence" and then leave the US, you have a 10-year ban. If you did not stay for 180 days after your I-94 expired before you left, then you couldn't have had this ban. But just because you don't have a ban doesn't mean you will be able to get a visa or they will let you in.

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