I overstayed by a week. Can I return to the U.S. on the Visa Waiver Program?

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Question:

I’m from Ireland and I visited the U.S. last summer on vacation using the Visa Waiver Program. I was authorized to stay for 90 days, but I ended up doing a cross-country trip and didn’t leave until a week after the date on my I-94 Arrival/Departure Record. I’m worried I won’t be able to come back for another visit! What will happen to me?

Answer:

There’s good news and bad news. The bad news: Because you stayed past the date authorized by the Department of Homeland Security, you will be ineligible for the Visa Waiver Program (VWP) and may have a more difficult time obtaining a visa to enter the United States in the future.

This means that if you want to vacation in the United States again, you will have to apply for a B-2 tourist visa (and pay the applicable fees) at the U.S. embassy or consulate in Ireland. At this point, you will need to provide plenty of evidence to prove your “nonimmigrant intent” (that you intend to return to Ireland) and that you can afford your trip to the U.S., such as an itinerary showing your return date, proof of your permanent job or residence in Ireland, and financial documentation. To learn more about this, read Nolo’s article “Application Process for a B-1 or B-2 Visitor Visa.” You can also expect further questioning at the U.S. border because of this past immigration violation.

The good news? You will not be subject to a time bar on reentering the U.S., because your overstay did not last more than 180 days. Make sure that you have proof of your date of departure (passport stamp or plane ticket, for example) in order to prove that your brief overstay shouldn’t trigger a time bar. For more information on how spending time in the U.S. without permission creates a period of inadmissibility, see “Consequences of Unlawful Presence in the U.S. – Three- and Ten-Year Time Bars.”

People who travel to the U.S. on the VWP have less access to immigration relief than visa-holders. For instance, there is no way to extend a U.S. visit on the VWP unless you encounter an emergency situation that prevents you from leaving. If that happens, you can ask U.S. Citizenship and Immigration Services to grant a period of satisfactory departure of 30 days or less. If you qualify based on persecution in your home country, you may also apply for asylum. See “Who Can Visit the U.S. on the Visa Waiver Program (VWP)” to learn more about your rights and obligations while on the VWP.

 

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