VWP denied entry b/c of overstays???what next besides 3-year ban??

[medium 0]

Here are the details...

Me: USC

Her: Australian

Years in relationship: 4.9 years

Description of her immigration history within the US:

Overstay on three separate occasions:

1. Arrival: USA/Oct 2005--Departure: Nov 2006 (an extension was in review through Homeland/legal until denied in March 06)...all up: 3 months legal/overstay roughly 7 months with extension included (either way under 365)

2. Arrival: USA/Jan 2007--Departure: Aug 2007...all up: overstay 4 months (under 180)

3. Arrival: USA/Oct 2007--Departure: Sept 2008...all up overstay 9 months. (Under 365)

*As far as the immigration attorney (not hired—wouldn’t take $) said anything over 180 days but under 360 days is an automatic 3 year ban from entering US.

* She is about one year into this as we believe. (Who files form G-639, freedom of info/privacy act? Her (in Aussie) me (in US)??? Is that the way to get the specs?

*voluntary leave on all occasions with me. Went back for school in Aussie...sister had kid…brother married…etc…

On 8/09: she was denied entry into USA

-Visa waiver refusal/notice to remove alien.

-Detained and asked why she wanted entry to US.

-Customs agent explained overstays to which she agreed and initialed dates and ports of entry.

-Fingerprint scan, body search and photo taken.

-Oath declaration.

-Asked why she overstayed to which she responds: irresponsibility and time spent with fiancé. (Me)

-Signed paper not to see embassy.

-Signed paper not to see lawyer.

-signed interview paper explaining overstay on 6 pages (10 minute interview).

-sent back to Australia at own expense. (Who is responsible for the flight back? Gov, airline or individual? Can an airline blacklist a person if they contest this charge?

Notes:

*Immigration attorney (not hired/only met with) says file a G-639, Freedom of Information/Privacy Act Request through USCIS.gov to get specs. (me or her?)

*marry then apply for i-601 (cost and length?)

*I (USC) hold a temporary partner visa (subclass 820) via Australia stating that she and I are in a committed relationship. This partner visa allows me to come and go to and from Australia with work privileges for the next two years.

Both applicants are college graduates.

Both applicants have no prior arrests or criminal activity.

Both applicants have been living in Australia since Oct/2008.

Engaged: June 09

so...We need to cut through red tape on the ban. Immigration attorney seems to think it's black and white as long as we don't have connections. Not denoting the severity of this situation but she was allowed to enter the country on two other separate occasions. When asked why that was possible Attorney replies, "People make mistakes."--does this help our case?

Those are the details. Just doesn't compute with us but just want to know where we stand before we make any decisions. Also wondering if she can do anything on her end…go to us consulate in Aussie?...file i-601 from where and when—before or after marriage?

Thank you all for taking the time to read. Wishing everyone the best as well.

[medium 0]

any help???

[canadian_wife 1,819]

SO the most recent stay, she had a 9 month overstay - she has a 3 year ban from the US which started when she left in September 08. She can no longer visit you but you may visit her. When she was denied entry, the cost of the return flight is her responsibility. Can an airline blacklist you? I have no idea, but why would the airline need to pick up the tab of her leaving? She's the one who overstayed, it's not the airline's fault.

If she wants to file a FOIA then SHE will file it - information will not be released to you.

People make mistakes, that is true, but there are consequences to those mistakes and her's is a 3 year ban from the US. You will need to file the I-601 if you marry her and apply for the CR-1. You will need to show that you, the USC, will incur EXTREME hardship if she does not come to the US and prove you are unable to move to Australia.

If you do file for an immigrant spousal visa, it will be denied at the interview and that is when you file the I-601. It takes a while so patience is your best bet.

Good luck - you are in for a long haul.

[medium 0]

thanks cw. just caught up w/us i guess. more frustrated on our part. more so than gov even. this is a bad law considering nobody can get to know anybody within 90 days. this i feel forces people to stay instead of setting up some kind of partner visa which would allow couples to spend time before forcing marriage on themselves. much like the partner visa in aussie...it just makes more sense.

[canadian_wife 1,819]

I am sorry for your situation, you always have the option of going to Aus since you already have the partner visa.

Good luck.

[payxibka 10,045]

overstay days are aggregated not individual events

Return flight cost is at the individuals expense

[Chica Yeyé 41]

thanks cw. just caught up w/us i guess. more frustrated on our part. more so than gov even. this is a bad law considering nobody can get to know anybody within 90 days. this i feel forces people to stay instead of setting up some kind of partner visa which would allow couples to spend time before forcing marriage on themselves. much like the partner visa in aussie...it just makes more sense.

yup, that's what happens. During immigration process, it is always our responsibility to prove to USCIS we are following each and every one of their rules, and if we don't , it is our problem, not theirs. And yes, overstays accrue. But like cw said, you can always move to Australia.

[JimVaPhuong 4,863]

thanks cw. just caught up w/us i guess. more frustrated on our part. more so than gov even. this is a bad law considering nobody can get to know anybody within 90 days. this i feel forces people to stay instead of setting up some kind of partner visa which would allow couples to spend time before forcing marriage on themselves. much like the partner visa in aussie...it just makes more sense.

Ok, here goes...

This comes up often on VJ. The purpose of the 90 days is to get married - full stop. It's NOT the purpose of the 90 days for the couple to get to know each other, or decide if they want to get married. A K1 visa is for a couple who are ALREADY COMMITTED TO MARRY. In fact, you have to submit an affidavit affirming your intention to marry within that 90 day period when you submit the petition. The government fully expects you to "get to know" your fiancee before you ever file for a K1 visa.

The partner visa in Australia is not much different. If you aren't married and don't have children together, then you must show evidence of a stable "de facto" partnership of one year or more. You can't get a partner visa and then go to Australia to "get to know" your partner.

[canadian_wife 1,819]

Jim - I think the OP meant to refer to the 90 days given on the VWP. I don't think the OP has applied for a visa yet since the ban was just issued.

Good luck.

[medium 0]

already have the partner visa so at least we can be together. it just feels like we are suddenly grouped in the catagory of criminals. anybody ever heard of anybody beating the ban. the bs is the hit or miss policy at the border. customs has recently implemented a check point leaving the country at 13 ports. about time right? every other country is up to speed. in my opinion it just makes people stay. just to get it right: get married (does it matter if it's in australia or not?)--i-601--interview w/us consolate in aussie (can she do anything there at the moment in regards to this?)--when it's granted and over 3 years then apply for another tourist visa or k-3? how much is the i-160? .....such a waste of time and paperwork.

[canadian_wife 1,819]

People 'beat the ban' frequently - with the filing of the I-601. The cost of the I-601 depends, it is more than just a form you fill out, it is an entire packet with supporting documentation. The cost can get quite expensive. The cost of the filing fee is $545.

The process is not hit or miss, your fiance overstayed by more then 180 days. CBP was following US immigration law. I am sorry it happened but she made a mistake and got the consequences for it.

It is unlikely she will be granted another tourist visa in the future, even after her ban. She has a history of ignoring the time allotted. She no longer can use the VWP so she'll have to apply for a B-2. She will have to show significant ties to Aus in order to get a B-2

It does not matter where you get married, it could be Aus or another country. Don't file the k-3, go for the CR-1 (follow the guides) it is faster and cheaper than the K-3. Alternativly, you could file the K-1 today since it is for fiance's.

Sadly, once the ban is issued there is very little that can be done on her side

Good luck.

[Boiler 45,402]

After the first overstay she was ineligible to use the VWP, There could be consequencies to that.

I do not understand the overturning of the ban, she admitted to it, and you stated it is correct.

I also wonder what she said when she was admitted as being the purpose of her visit, bearing in mind her subsequent admission.

A visitor visa, well nothing is technically impossible with a waiver, personally I think you would be better spending the money on Lottery tickets.

[Bobby+Umit 161]

Here are the details...

Me: USC

Her: Australian

Years in relationship: 4.9 years

Description of her immigration history within the US:

Overstay on three separate occasions:

1. Arrival: USA/Oct 2005--Departure: Nov 2006 (an extension was in review through Homeland/legal until denied in March 06)...all up: 3 months legal/overstay roughly 7 months with extension included (either way under 365)

2. Arrival: USA/Jan 2007--Departure: Aug 2007...all up: overstay 4 months (under 180)

3. Arrival: USA/Oct 2007--Departure: Sept 2008...all up overstay 9 months. (Under 365)

Looks like you were using the VWP as a defacto "greencard" - this alone would probably flag the user for more scrutiny upon arrival. The overstays were not helpful..

*As far as the immigration attorney (not hired—wouldn’t take $) said anything over 180 days but under 360 days is an automatic 3 year ban from entering US.

Correct

* She is about one year into this as we believe. (Who files form G-639, freedom of info/privacy act? Her (in Aussie) me (in US)??? Is that the way to get the specs?

Ban should of been told to her and given some sort of paperwork. She should request any information for herself. (she can probably contact the US Embassy to inquire)

*voluntary leave on all occasions with me. Went back for school in Aussie...sister had kid…brother married…etc…

On 8/09: she was denied entry into USA

-Visa waiver refusal/notice to remove alien.

-Detained and asked why she wanted entry to US.

-Customs agent explained overstays to which she agreed and initialed dates and ports of entry.

-Fingerprint scan, body search and photo taken.

-Oath declaration.

-Asked why she overstayed to which she responds: irresponsibility and time spent with fiancé. (Me)

-Signed paper not to see embassy.

-Signed paper not to see lawyer.

-signed interview paper explaining overstay on 6 pages (10 minute interview).

-sent back to Australia at own expense. (Who is responsible for the flight back? Gov, airline or individual? Can an airline blacklist a person if they contest this charge?

The expense is always on the visitor. Coming to the US is done by the visitor, entry is not guaranteed. No visa gives you that. I don't know how you could contest the charge, they (airline) provided a service, and she used said service. If you wish to contest the money, I would imagine it would be the US government at fault (they are the ones that made you take the flight. Good luck in this case though...

Notes:

*Immigration attorney (not hired/only met with) says file a G-639, Freedom of Information/Privacy Act Request through USCIS.gov to get specs. (me or her?)

You can only ask for information about yourself, anything else will be heavily redacted. (unless it's public domain)

*marry then apply for i-601 (cost and length?)

Always and option. $545.00 - time varies on approval - if granted.

*I (USC) hold a temporary partner visa (subclass 820) via Australia stating that she and I are in a committed relationship. This partner visa allows me to come and go to and from Australia with work privileges for the next two years.

Both applicants are college graduates.

Both applicants have no prior arrests or criminal activity.

Both applicants have been living in Australia since Oct/2008.

Engaged: June 09

Means absolutely nothing in this case, other than you have "met" in the two years if you are filing for a K-1 visa

so...We need to cut through red tape on the ban. Immigration attorney seems to think it's black and white as long as we don't have connections. Not denoting the severity of this situation but she was allowed to enter the country on two other separate occasions. When asked why that was possible Attorney replies, "People make mistakes."--does this help our case?

As you say, the rules are pretty "black and white" - best you can do is file for the waiver and see what happens...

Those are the details. Just doesn't compute with us but just want to know where we stand before we make any decisions. Also wondering if she can do anything on her end…go to us consulate in Aussie?...file i-601 from where and when—before or after marriage?

The waiver is usually started at the embassy level. You would probably want to get married there, and file the paperwork to immigrate her to the US - at that time, the waiver would be filed...

Thank you all for taking the time to read. Wishing everyone the best as well.

[Boiler 45,402]

I thought the airlines usually used the return part of your flight in these sort of cases. The airline is responsible for your return, I am not aware of anything that prevents you being charged for the service provided.

[Bobby+Umit 161]

I thought the airlines usually used the return part of your flight in these sort of cases. The airline is responsible for your return, I am not aware of anything that prevents you being charged for the service provided.

Usually they do, perhaps they only had a one way ticket?