Will I be allowed to enter the US after living there illegally then legally in the past?

10/11/2019 6:45:20 PM

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.

Credit:stackoverflow.com‘

About me

Hello,My name is Aparna Patel,I’m a Travel Blogger and Photographer who travel the world full-time with my hubby.I like to share my travel experience.

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