entering the States with an ESTA after overstaying my OPT

[Chris78990 0]

I overstayed my OPT by about 170 days. I am thinking of going to Vancouver, Canada for a vacation in March. My girlfriend will come from Seattle to meet me there. I am too afraid to fly straight to Seattle and be told to fly back to Paris. However, after a week or so in Vancouver, BC, I am thinking of taking a bus to Seattle, knowing that there is a risk they might not let me in the country if they see I overstayed my OPT when I last was in the US (left early October '15). I'm thinking, worst case scenario, they don't let me in the States and I just stay in Vancouver with my girlfriend a bit longer.

I should mention that I did not plan to overstay my OPT in the first place. My plan was to go to Vancouver,BC less than 60 days before the end of my OPT, spend a couple of days there and then re-enter the US with my ESTA to stay an additional 90 days (I basically tried to use some kind of legal loophole to stay in the US a bit longer). What happened is that the Canadian customs did not let me in the country for fear I remain there illegally (although I showed them a plane ticket leaving from Seattle to Paris for 3 months later), they made me sign a form saying I no longer wanted to go to Canada and turned me in to the US customs. One of their guys grilled me for 5 minutes, he told me I'd better leave the US shortly if I didn't want to be "detained with a bunch of Nicaraguans". I just nodded, got back to Seattle and actually left around the 170 days mark.

Can anybody tell me what are the risks I would be taking by trying to re-enter the US this way? I was told overstaying less than 180 days is no big deal if you later get a work or student visa (which is what I'm trying to get for next September), but it might be problematic if you're re-entering as a tourist. That worries me, along with the fact that I would have to go through the same customs where I ran into problems about 5 months earlier. I'm only considering this option because that would mean spending less money, and possibly more time with my girlfriend. Is there a possibility the Canadians do not let me in the country? After all, they made me sign a document back then so they could have my name in a file somewhere. Thanks for the advice!

[kzielu 1,149]

Any overstay is a big deal - even if there is no formal ban, getting any non-immigrant visa (work/student / whatever) will be extremely difficult.

[NigeriaorBust 4,087]

When you answer your ESTA questions you will be denied, and if you don't mention the overstay you will get turned back at the border.

[Chris78990 0]

Lol. Thanks for not judging. To be fair, I could not afford to go back right away. I figured there would not be much of a difference between overstaying 90 days and 170 days. Anyway, what's done is done. I guess I won't even bother trying to re-enter as a tourist then.

Regarding getting a student or work visa after overstaying, are you sure it's "extremely difficult" to get one after overstaying for less than 180 days. Everywhere I look, this seems to be the minimum number of days required for them to ban you (3 years I believe). By the time I get a new student visa, I will have a new passport too.

[Chris78990 0]

I forgot to mention that I don't recall surrendering my I-94 card upon leaving the US after my overstay. How then can they know if or how long I overstayed?

[Merrytooth 5,748]

Lol. Thanks for not judging. To be fair, I could not afford to go back right away. I figured there would not be much of a difference between overstaying 90 days and 170 days. Anyway, what's done is done. I guess I won't even bother trying to re-enter as a tourist then.

Regarding getting a student or work visa after overstaying, are you sure it's "extremely difficult" to get one after overstaying for less than 180 days. Everywhere I look, this seems to be the minimum number of days required for them to ban you (3 years I believe). By the time I get a new student visa, I will have a new passport too.

You did not obey your previous visa restrictions to leave in a timely manner, so why should the US Consulate CO trusts you not to violate the terms and overstay again?

Oh yeah! You have a new passport! Will you have a new sets of fingerprints too?

I forgot to mention that I don't recall surrendering my I-94 card upon leaving the US after my overstay. How then can they know if or how long I overstayed?

There is something called airline passenger departure manifest, so US govt knows when you left the country.

[Chris78990 0]

Thanks for the kind words. Here's something I found online:

"For F-1 and J-1 students admitted for D/S, however, unlawful presence will not begin until U.S. Citizenship and Immigration Services (USCIS) or another relevant government authority makes a formal determination that you are here unlawfully. For example, if you overstayed 90 days before receiving a formal determination from USCIS that you were in the United States unlawfully, those 90 days would not count towards the 180-day period and the clock for unlawful presence would begin on the date USCIS made that decision. These determinations are often made when an F-1 or J-1 student files a change of status application after having overstayed."

I don't have my passport with me as I'm writing this but I believe I was admitted for D/S under my F1 visa. I did not receive anything from USCIS (to my knowldge). Does that mean I did not accrue unlawful presence then?

I think it's clear I should not even try and cross the border as a tourist this coming March. (I have heard enough horror stories. Could they detain me?) I am more concerned about getting a F1 or H1B in the future. Provided I get into a grad school or I get a job, I guess I will have to convince someone at the US embassy that I do not intend on overstaying again. Has anyone had a similar experience? Any tips?

[jam2016 10]

You need to read "Carefully" what you posted again. USCIS or another Government Authority meaning CO from your embassy or CBP Officer at POE will determine if you have violated your previous Visa terms. If they found you Overstayed before, you would be denied for any kind of non-immigrant visa or turned back at POE even with a Visa. CO is not the only one you need to dodge here.

The USCIS / CBP / ICE do not care about any overstayer or illegals who left the U.S soil voluntarily. Not caring does not mean that it won't have some sort of record about you in multiple Government Records.

You having a new PP and a new I-20 will do no good and you have very very slim chance of slipping through the CO about your previous overstay. If you lie on your next F-1 Application or If you try to evade your former overstay with a forge document such as a new name, PP and address, you may be barred for 3 years to life to ever entering the U.S again.

Good Luck with you next endeavor! It may not be in the U.S.A but could be a fresh start in Canada.

[La Souris 19]

Soon, by March I think, you'll also need an ETA to enter Canada. Look into it as I'm not sure you'll get it.

[Chris78990 0]

Good call La Souris. I would need one if I go there after March, 15. Not sure why they would not grant me one but it's best to remain paranoid on the matter. My vacation with the girlfriend will most likely be outside the US and Canada at this point.

As jam 2016 mentioned, I left the US voluntarily. I knew that crossing the 180 day mark would get me into some real trouble. I certainly won't lie to any US official about overstaying and I would never dream of forging documents. If I do get accepted into a PhD program or get a job, the first thing I will do is consult a lawyer to know the best way to spin this thing.

[newacct 688]

Since you entered on D/S, you did not automatically start accruing unlawful presence on any date. So there was no number of days of staying out of status that would have caused you to have a ban upon leaving anyway. But not having a ban doesn't mean you will be able to enter the US. When you apply for a visa or for an ESTA you will have to disclose the times in the past where you violated the terms of your visa.

[Ms Hogan 295]

You're assuming Canada will let you in when they already denied you entry last time??

[caliliving 606]

I overstayed my OPT by about 170 days. I am thinking of going to Vancouver, Canada for a vacation in March. My girlfriend will come from Seattle to meet me there. I am too afraid to fly straight to Seattle and be told to fly back to Paris. However, after a week or so in Vancouver, BC, I am thinking of taking a bus to Seattle, knowing that there is a risk they might not let me in the country if they see I overstayed my OPT when I last was in the US (left early October '15). I'm thinking, worst case scenario, they don't let me in the States and I just stay in Vancouver with my girlfriend a bit longer.

I should mention that I did not plan to overstay my OPT in the first place. My plan was to go to Vancouver,BC less than 60 days before the end of my OPT, spend a couple of days there and then re-enter the US with my ESTA to stay an additional 90 days (I basically tried to use some kind of legal loophole to stay in the US a bit longer). What happened is that the Canadian customs did not let me in the country for fear I remain there illegally (although I showed them a plane ticket leaving from Seattle to Paris for 3 months later), they made me sign a form saying I no longer wanted to go to Canada and turned me in to the US customs. One of their guys grilled me for 5 minutes, he told me I'd better leave the US shortly if I didn't want to be "detained with a bunch of Nicaraguans". I just nodded, got back to Seattle and actually left around the 170 days mark.

Can anybody tell me what are the risks I would be taking by trying to re-enter the US this way? I was told overstaying less than 180 days is no big deal if you later get a work or student visa (which is what I'm trying to get for next September), but it might be problematic if you're re-entering as a tourist. That worries me, along with the fact that I would have to go through the same customs where I ran into problems about 5 months earlier. I'm only considering this option because that would mean spending less money, and possibly more time with my girlfriend. Is there a possibility the Canadians do not let me in the country? After all, they made me sign a document back then so they could have my name in a file somewhere. Thanks for the advice!

First, if Canada denied you entry the first time that will be in the computer and i highly doubt they will let you in a second time!!

Also, when you say you overstayed your OPT do you mean you kept working illegally? if you continued to work on your OPT then you wont be applicable for an H1B visa I don't think because you worked 'illegally".

My guess is the Canadian border knew what you were trying to do. They obviously thought you may overstay in Canada or use that to hand over your i94 and then go right back to the USA and perhaps be denied entry into the USA and continue to stay in Canada and overstay? They probably saw that your US student visa was up.

Maybe you should consult a lawyer while you are in the USA and ask him if the 170 day ban will prevent you from getting another F1 visa to come to school in the USA again for a PHD? Also, what field are you in as H1B visas are VERY difficult to get. They cost a company 10k+ and you must apply april 1 for work starting oct 1. keep in mind that 40+% of H1B visas are given to google/apple/microsoft tech companies. It does seem as though you are smart and have a great grasp of the English language, so that should help you in your job search:)

[IcezMan_IcezLady 582]

What makes you think we will help you break the law?

Obviously, you have no respect for the immigration laws of this country and now, here you are trying to find a "loophole"...smh!

I hope they deport you back to where you came from.

[Chris78990 0]

Thanks for the input miss Ghana, Texans would be proud. More seriously, I wasn't trying to play the system. I had real financial issues that prevented me from leaving in due time. I might have been able to leave after 120 days instead of 170 but that's about it. I knew that overstaying past 180 days was a no-no, that's about it.

Ms Hogan, good point, I wasn't thinking straight. I abandoned the whole ESTA/Canada idea at this point. Trying to get back States-side without a F1 or H1B does not seem reasonable from what I'm hearing.

Caliliving, I did not work after my OPT expired. I have a MA in Public Affairs, I am aware a lot of the H1B jobs go to STEM graduates. However, NGOs and universities are potential employers for someone with my profile. They are also exempt from the visa cap so I'll definitely give that a shot.

I obviously plan on consulting a lawyer if I get accepted into a PhD program/ a company, prior to asking for the visa.

If anyone has a legal background, has experienced a similar situation or knows of someone who did, keep it coming please. Much appreciated