In this series of articles, we will tackle frequently asked questions in the context of US immigration law and help to dispel some popular misconceptions.

We have summarized some key issues below. Please note, the following content constitutes “information”, not “legal advice”. It should not be used as a substitute for seeking legal advice from a licensed US immigration attorney.

#2 “I have previously overstayed my US visa/ESTA. Will I be Granted Admission to the US?!”

You will need to seek legal advice from a licensed US immigration attorney regarding the unique facts of your case. However, we have summarized some of the relevant issues below, for information purposes only.

ESTA v Visa

The US Embassy website states that any individual who has previously overstayed in the US is ineligible to travel to the US for business or tourism purposes under ESTA. It is therefore likely that you will be required to apply for a visa, regardless of the purpose of your visit to the US.

Inadmissibility to the US

Generally an individual who has previously violated US immigration law (for example, by overstaying) is considered inadmissible to the US.

In certain circumstances, there are prescribed periods of inadmissibility:

i. Three Year Bar

If an individual is:

(a) Unlawfully present in the US for a period of between 180 consecutive days to 1 year and
(b) Departs from the United States prior to the initiation of removal proceedings by US authorities
he/she will be deemed “inadmissible” to the US for a period of three years, beginning from the date of his/her departure from the US.

ii. Ten Year Bar

An individual who has been unlawfully present in the US for a year or more will be inadmissible to the US for a period of ten years, beginning from the date of his/her departure or removal from the US.

Waiver of Inadmissibility

If an individual is deemed inadmissible by virtue of their previous immigration violations, he or she will need to seek legal advice regarding the merits of applying for a waiver of inadmissibility.

A waiver of inadmissibility is an official determination by the US Government that allows an otherwise ineligible person to enter the United States.

It can be difficult to successfully obtain a waiver of inadmissibility in a case involving previous immigration violations. Entry to the US is a privilege granted by US Border Control staff, on the understanding that the relevant US immigration laws will be adhered to by the individual in question. If an individual has a history of violating US immigration law, US Immigration Officers will be concerned of the risk of future violations and will be reluctant to grant a waiver of inadmissibility.

However, these difficulties are not insurmountable. With thorough preparation, a well-judged approach and pragmatic legal advice, you will be able to maximize your prospects of success. At Davies Legal, we offer a breadth of experience in all US immigration matters involving previous violations of US immigration law. We offer clear and transparent fixed pricing and balance realistic expectations with a “can do” attitude. Call now for advice on how we can assist you with your US immigration matter and potentially enable you to fulfil your American Dream.

Published: 14th February 2017

Filed under: Articles, FAQ