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So, I overstayed by chance 1 day on ESTA in 2014. I traveled back to USA on ESTA in 2015 but at the entrance they informed me of previous overstay which I was unaware. I did not have to pay the 600$ penalty and was allowed in country.I guess I can not travel on ESTA anymore.

Has anybody had similar experience?

I want to go back now on B2 visa for a short visit. Will I have trouble getting it? My husband is USA citizen but that does not change much I guess.

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    Hmm ... it sounds like according to the rules you should have been denied entry in 2015. Does the entrance stamp in your passport from 2015 say that you were "admitted" or "paroled"? – Henning Makholm Apr 20 '17 at 16:58
  • Before the flight in 2015 I checked my ESTA status and it did not say anything that it is expired or cancelled. Stamp says Admitted. But the class is different from previous stamps as I see now it is said "B2" and the time until valid is given six months...and then there is a note added like "I 193 No Fee". So, I was not authorized through ESTA but instead given a B2 visa for 1/2 year? – jkdze Apr 21 '17 at 9:01
  • Curiouser and curiouser: I-193 is supposedly "for an alien who is a legal resident of the United States to reenter the United States without the alien's passport and/or visa". – Henning Makholm Apr 21 '17 at 9:16
  • @jkdze the stamp in your passport is not a visa. It means that you were admitted in B-2 status for one year (presumably this is because you were statutorily ineligible to be admitted under the VWP). The I-193 notation has to do with waiving the requirement to have a visa. They obviously decided that you were trustworthy and that they weren't going to keep you out because of your overstay. So your chances for getting a visa are probably pretty good. – phoog Apr 23 '17 at 20:42
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Nobody knows if you may or may not have trouble for overstaying your ESTA by one day when going for a visa. According to the law strictly, you cannot use ESTA again.

From you discussion in the chat, apparently you were given a gratis/fee-free visa at the airport to enter via a I-193.That is very unusual since you imply you are not a legal resident of the USA and I-193's are:

For an alien who is a legal resident of the United States to reenter the United States without the alien's passport and/or visa.

Overstaying for one day does not attract a ban per INA § 212(a)(9)(B) and/or make you inadmissible.

Under section 212(a)(9)(B) of the Act, an alien is inadmissible if the alien has accrued a specified period of unlawful presence, leaves the United States after accruing the unlawful presence, and then seeks admission during the period specified in (either 3 years or 10 years after the departure, depending on the section 212(a)(9)(B)(i) duration of the accrued unlawful presence).

Is it a black mark against you? You bet! The consular officer may choose to ignore it or use it to deny you a visa at his discretion.

Typically your husband being a US citizen makes it less likely you will get a non-immigrant visa, unless you demonstrate you guys together live outside the USA and you have no immigrant intent. It does appear you have an unusual case/profile and have previously overcome that challenge/disqualifier. Go ahead and apply for the B2 visa and update your question with the result.

  • Since this showed up as active I'll just note that the caption for the I-193 form is misleading; it is a waiver application for both immigrants and non-immigrants. If you look at the form itself, the 212(d)(4) reference is the one applicable to non-immigrants and the line below that asks for the non-immigrant class the applicant is admitted as. Note that 212(d)(4) only applies in "unforseen" circumstances so the OP will definitely need a visa next time. – Dennis Aug 27 '17 at 14:20

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