Can husband re-enter U.S. on B visa after overstay?

[HFM181818 750]

no one can accompany an applicant who is applying for a B2 visa (except perhaps, for a caregiver)....nothing you might say or write means anything, as nothing that you could say or write is legally binding upon anyone....the CO will have be to about 150% convinced that he would abide by a new privilege given to him....which is doubtful considering he has already shown a disregard for the VWP privilege. Trying to claim that it's some lawyer's fault won't hold water....who gave him the privilege (VWP) in the first place? the US of A or some ethically challenged immigration attorney? Yet, at the end of the day, he chose to believe the attorney, but now wants/hopes that the US will hand it back...the big question to resolve is this: WHY should the US hand him a new privilege after having violated the terms of the first one? That's what he will have to overcome....

[Boiler 45,730]

Nothing wrong adjusting from the VWP

Quite legal.

[aaron2020 11,651]

Don't see why you are mad at the lawyer. He said your husband could stay and apply for a green card. Your husband choose to leave without filing for a green card after overstaying the VWP. Being married to a USC does not allow your husband to overstay his VWP when you choose not to file anything.

[christine55 5]

Oh, I guess an adjustment of status is the same thing as a green card? Sorry, maybe I've been mistaken and have misunderstood.

We definitely had every intention of staying, but were having problems coming up with the money to hire a lawyer and apply for a green card. We decided out quality of life would be better overseas because we'd both be able to work immediately and make a living for ourselves.

But I guess it's pretty near impossible to prove a negative, I completely understand why the odds are not in our favor and he most likely will get denied. I'm not quite sure what else he can use to prove his ties here, besides his work contract. We are in the process of trying to buy an apartment here, but I don't see how that would help unless we actually own property here.

Feel very stupid right now.

Thanks for all the input though and taking the time to answer my post!

[Boiler 45,730]

Assuming he applies let us know how it goes.

[christine55 5]

Will do. Thanks again

[HFM181818 750]

Right now, this is not about one's ties to one's country - this is about trust. There is no magic list of 'ties' that when presented result in an immediate visa issuance. Instead, the applicant must convince the CO that they will abide by the terms of the visa class they are seeking - and having only recently violated that trust, well, put yourself in the CO's shoes...why would you hand over an object of trust to someone who has not yet demonstrated trustworthiness? When people from VWP countries have had the VWP taken from them (due to their own transgressions), they will likely find it more than challenging to obtain any non-immigrant visa in the foreseeable future. Letters of apology, whether written by the applicant or the applicant's SO, from a congressman, a local mayor or the librarian are mostly round file fodder.....self serving and non-binding upon anyone.

[christine55 5]

Yeah, but there's no way to make someone trust him. The only way he maybe has a shot is by trying to prove his intent to return. So yes, I completely understand what you're saying, there is no reason for them to trust him since he overstayed his VWP. The only option he has is to try to prove that he has no reason to stay over there.

[HFM181818 750]

again, we are now talking about trust, pure and simple. He has had a job for barely a year, and a USC spouse/child....as you pointed out, one cannot 'make' a CO trust him....he should expect a lot of questions about that fateful last trip, because many things were at play....first, he had a RT ticket...that went by the wayside, second, he told CBP he was 'just visiting', but wound up staying, marrying, etc, third, whatever job he alleged held and may have mentioned (don't know) was a dead end...and fourth, no matter what some ethically challenged attorney says, the bottom line was (and is) that he knew the terms of the VWP and chose to ignore them. That had to be a conscious decision on his part, not on the attorney's.

So all of those elements will be focused upon when and if he applies for the B2...questions such as:

1- why did you violate the terms of the VWP during your last trip? (no real good answer for this one)

2- what did you tell CBP about the true purpose of your visit?

3- when did you try to cancel or get a refund for your airline ticket?

4- when did you quit your 'job' before going to the US the last time?

5- Why should I believe that you won't use a new B2 visa for other purposes? (no real good answer for this either)

6- how long have you been on this new 'job?'

7- how does this new job relate to your old one?

8- did you quit or were you fired from that last job? (big question here)

9- how long after being admitted as a tourist did you get married?

10- with whom are you living now?

11 - do you own this residence?

these would be but a few of the questions I would have asked...and notice that I would have been building a picture of his credibility, willingness to answer, etc....and notice there are no easy answers that he might try to memorize, because if I had any hint that he was trying that, I would add 5-10 questions to each question asked and see how far back his creativity (if attempted) would reach....and for most people, it doesn't reach very far because most people are not skilled enough create and memorize an entire history of events that go back very far, and when they run out of answers, then we return to the first group of answers given and peel those apart.

I am not suggesting that every CO would be that focused....I would hope so...because taking any short cut when interviewing someone with a similar history is unwise.

[Boiler 45,730]

I can see lots of good answers, not sure why the OP's husband could not.

He is secure in Norway, his wife is with him and both earning a tidy sum.

[HFM181818 750]

Well, IMHO, there are NO good reasons for having violated the trust given to someone, whether a visa or the VWP....there are excuses, of course, but the only valid one I ever accepted (but never encountered!) was if the VWP traveler had been in a coma that lasted longer than his or her period of admission....otherwise, only excuses.

[Boiler 45,730]

Just as well then it will not be your call.

[HFM181818 750]

can you think of one GOOD reason for ignoring our laws? relying on some attorney's advice is not a good reason....

[christine55 5]

Well, you make it sound like he is either damned if he does, damned if he doesn't.

The story is:

We met and dated for several months. Him and hi friend bought tickets to visit me. The contract for his job ended the day before he left for the U.S. They arrived August 30th. We decided that this was the real deal and we wanted to be together. We met with an immigration lawyer who advised for him to stay, us to get married, and for him to apply for a green card. He also advised us to hire an immigration attorney to help with the green card process. His ticket to leave was Sep. 21. His friend left, he stayed, and we got married on Oct. 31. I was working as a veterinary nurse in an animal hospital, so I wasn't make a whole lot of money. He couldn't work because it was illegal. I couldn't afford to hire an immigration attorney. I couldn't afford the fee to apply for a green card. It was a horrible existence and we were both miserable as I couldn't make ends meet and support the both of us. So, we decided to move to Norway. He got a job working for the same company a few weeks after he came back. I got residency after being here for 3 months. I got a job 6 months after moving here. He was offered a better job at a different restaurant (he's a chef). Worked there for 9 months, was promoted to sous chef, got a huge salary increase, and a new permanent contract. By the time we hope to visit the U.S. he will have been there almost 2 years. I was pregnant, had the baby in June, have been on maternity leave since but have a permanent contract through my job as well. The baby also has residency here. We have a 3 year lease with for our apartment and live alone, just the 3 of us. The apartment is in his name. We don't have savings, so it's not like we've been saving all this money up and are taking it to the U.S. with us (which might look suspicious), but on our salaries we can certainly afford to visit for a few weeks.

Not sure if you needed all that information or if the consulate would want to hear all that.

Of course it's his fault for overstaying. I get that. But it was total ignorance on our part. We never looked up the cost of a green card or the repercussions of overstaying a visa and not changing status. It was young, naive, stupidity.

[HFM181818 750]

As you may know, one cannot extend one's visit after entering on the VWP, and the only COS allowed (foolishly, IMHO) is when someone marries their Amcit SO....all of this information is relatively common knowledge, which returns to what constitutes a good reason for violating the trust given to someone...there was no life or death decision, only convenience.

Over the span of nearly 30 years, I did have some of my decisions (denials) overturned by a handful of supervisors, and they were proven wrong in every case save one.

In the case of having worked in a VWP country for about 3 years, 7 denials I made of people who allegedly had 'good reasons' for having disregarded the rules of the VWP (but not in my opinion) were overturned after the supervisor received some tear jerking missive....all 7 promptly disappeared into the US never to be seen again on their very first return to the US...

In a different country (non-VWP), 5 people had been abusing their B2 visas, mostly by working illegally in the US....I denied all five when they got sent home by CBP with cancelled visas....weeks or months later, they reapplied (separately, of course), got denied by me and subsequently overturned by a supervisor....all five promptly went back to the US and never returned...I can remember one and only one case in which a person who had their 'good reasons' for ignoring our laws, whose new visa application was denied, and had it overturned by a supervisor, did not use it to go and stay or work in the US...I relied heavily on my judgment, which was remarkably accurate...and did not fall prey to tears, 'character letters' written by some clergy member, whining pleading letters from some congressman, nor anything else, because statistics beyond my own had proven that a decision to believe any of that nonsense was unwise at the very least...