Re-Entry after a new passport

[TinkersMom 0]

Because we were uneducated my husband left the US after we got married to go to his son's wedding. We had not filed any paperwork yet and thought we could do it while he was in the UK. He overstayed his visa waiver and we learned after he got home that he could not come back to the US because of his overstay. He got an Irish passport because he was living in Ireland for a time and was born there and was legally entitled to get one. He has been told that since he has a totally different passport that he would not have a problem coming back into the US. I have a couple of questions: 1) Is it true that because of his new passport he will be able to enter the US? 2) If he applies for a visitor visa and is approved can we still file his adjustment of status and petition for alien relative when he gets back to the US? We accept full responsibility for this mistake but have to try to get him home and have a life together. Thank you for your understanding and any help you can offer.

[Gosia & Tito 199]

1) Is it true that because of his new passport he will be able to enter the US? 2) If he applies for a visitor visa and is approved can we still file his adjustment of status and petition for alien relative when he gets back to the US? We accept full responsibility for this mistake but have to try to get him home and have a life together. Thank you for your understanding and any help you can offer.

1. Not entirely correct. The sanctions are to a person, not to a passport. What happens is that the data that would appear in the screen of the inspector upon entry could be 'off' in terms of the nationality of the person being inspected and he might be just waved in; but, and this is the risk: someone might put 2 and 2 together and deny entry. At same time, he might be asked questions that could result in mis-representation either at the inspection point or later on. How is this mis-representation? He is claiming to be a different person than the one with the overstay. It might not be caught at entry, but can come byte you later. Remember there are several opportunities (AOS, citizenship) this could be uncovered.

In 'normal' circumstances, meaning, the person would never immigrate and just visit, it might not matter; in this particular case, because of the situation, it might. One thing that many people learn the hard way is to never ever lie to a federal officer (not saying that you guys will/do), the repercusions are deep and never goes away.

I'd suggest to check with an attorney, there could be a simple solution that does not involve time apart or trying something somewhat risky.

2. I'd think yes. As before, during the visitor visa interview, forms, etc it could be asked if person is known by other names. The letter of the law might be to declare other different spellings, but the spirit is whether the person is recognized under other 'identifications' (such as different passports). I'd suggest he comes clean in this aspect and maybe even volunteer the information, again, with the mis-representation thinking.

Notice I used "could" in several places, because it might or might not happen. Immigration laws and regulations as many of us have found are somewhat 'flexible' and leave room for subjective interpretation on the part of the government side.

Hope it all goes well.

Edited February 10, 2012 by Gosia & Tito

[TinkersMom 0]

1. Not entirely correct. The sanctions are to a person, not to a passport. What happens is that the data that would appear in the screen of the inspector upon entry could be 'off' in terms of the nationality of the person being inspected and he might be just waved in; but, and this is the risk: someone might put 2 and 2 together and deny entry. At same time, he might be asked questions that could result in mis-representation either at the inspection point or later on. How is this mis-representation? He is claiming to be a different person than the one with the overstay. It might not be caught at entry, but can come byte you later. Remember there are several opportunities (AOS, citizenship) this could be uncovered.

In 'normal' circumstances, meaning, the person would never immigrate and just visit, it might not matter; in this particular case, because of the situation, it might. One thing that many people learn the hard way is to never ever lie to a federal officer (not saying that you guys will/do), the repercusions are deep and never goes away.

I'd suggest to check with an attorney, there could be a simple solution that does not involve time apart or trying something somewhat risky.

2. I'd think yes. As before, during the visitor visa interview, forms, etc it could be asked if person is known by other names. The letter of the law might be to declare other different spellings, but the spirit is whether the person is recognized under other 'identifications' (such as different passports). I'd suggest he comes clean in this aspect and maybe even volunteer the information, again, with the mis-representation thinking.

Notice I used "could" in several places, because it might or might not happen. Immigration laws and regulations as many of us have found are somewhat 'flexible' and leave room for subjective interpretation on the part of the government side.

Hope it all goes well.

Thank you for your kind reply, I have posted on other boards and only got nasty answers that were not helpful from people that only used the board to judge others! I really feel that our best bet would be to apply for AOS and get denied and then file an appeal. My father is 73, has multiple serious health problems and I just bought a house here and it would be a real hardship for me to move to the UK. I have heard that the appeals get approved more often than they used to so maybe we should try. I don't really see any other alternative.

[Harpa Timsah 13,258]

His ESTA will not be approved because he overstayed a previous VWP. A new passport won't change that. He is currently banned from the US. He is the same person. Also, it is illegal to enter the US on a non-immigrant visa with the intent to immigrate, and to help others do so is against the TOS for this site.

I would start the process for a spousal visa. You can request an expedite if his being away creates a hardship for you.

ETA: It appears that he has purposely gotten an Irish passport to attempt to circumvent US immigration laws and hide his identity. I can't stress enough how bad a plan this is. If the ESTA pre-screening and the Border Patrol somehow failed and he got in, his AOS would be denied and he would be ordered deported. There might be further complications, because he would have to lie on his ESTA application to get it approved, and that is material misrepresentation, which results in a lifetime, unwaiverable BAN from the US.

Edited February 10, 2012 by Harpa Timsah

[TinkersMom 0]

I completely agree, he is the same person, even if he didn't get an Irish passport to try to change his identity (he got the Irish passport because he was in Ireland) it would still make him look bad. We will start the spousal visa as you suggest. Thank you so much for your help. We really do want to do this the right way

[Harpa Timsah 13,258]

I knew this sounded familiar. Someone going to UK for his son's wedding.

http://www.visajourney.com/forums/topic/292358-husband-overstayed-vw-and-returned-to-uk-aos-not-yet-filed/

and here

http://www.visajourney.com/forums/topic/292283-im-in-uk-wife-is-in-the-states-been-apart-now-5-months/page__pid__4427907#entry4427907

You posted this OVER a year ago. Why haven't you filed yet? What else aren't you telling us? Did your husband sneak in on his new passport and lie on ESTA? That sounds like your plan from your second post.

Edited February 10, 2012 by Harpa Timsah

[LIFE'SJOURNEY 970]

The information regarding the 2 passports are going be raised as a red flagged regardless of whatever route they take. It would have been in his best intrest to have renewed the passport he was orginaly using.

Yes, there are people who uses two different passports, but they are not trying to gain permanent resident into another country. RED FLAGS ALL OVER THE PLACE. BE prepared to be questioned about this. Long AP....

[NigeriaorBust 4,087]

If you go to the site about VWP and ESTA it has a place about who is eligible Site with the requirement to be eligble for ESTA

The last qualification is the YOU ( not your passport )

•Have complied with all conditions of any previous admission under the Visa Waiver Program

Obviously by the overstay he is NEVER able to use VWP again under any passport. To apply is a definate misrespresentation to gain entry to the US and could be a lifetime ban.

Sorry he will either need a visa to reenter legally. If he entered under VWP illegally and then tried to AOS his finger prints should get a hit off the old ID and that could be a real mess.

[Gosia & Tito 199]

Thank you for your kind reply, I have posted on other boards and only got nasty answers that were not helpful from people that only used the board to judge others! I really feel that our best bet would be to apply for AOS and get denied and then file an appeal. My father is 73, has multiple serious health problems and I just bought a house here and it would be a real hardship for me to move to the UK. I have heard that the appeals get approved more often than they used to so maybe we should try. I don't really see any other alternative.

Not a problem. I'd still get an attorney's advice before going for the AOS or while you work out the forms; you can't be the only one with this kind of problem.

[Brother Hesekiel 2,236]

All passports are now biometric, where a computer chip stores the information.

A person has a first name, a last name, a birth date, a birth place, a father's name, a mother's name, a weight, a height, a hair color, an eye color and some other characteristics that are unique to a person. Do you really believe that your husband can fool the world's most advanced entry/exit systems by getting another passport?

How 'bout you stop try to play the system and play by the rules instead?

[TinkersMom 0]

All passports are now biometric, where a computer chip stores the information.

A person has a first name, a last name, a birth date, a birth place, a father's name, a mother's name, a weight, a height, a hair color, an eye color and some other characteristics that are unique to a person. Do you really believe that your husband can fool the world's most advanced entry/exit systems by getting another passport?

How 'bout you stop try to play the system and play by the rules instead?

Yes, I am aware of the biometrics. We weren't trying to "fool" anyone, as I said, my husband got an Irish passport because he lived in Ireland! We want to play by the rules, just unsure of what the rules are, that's why I'm posting here.