Applying for Marriage Green Card from Abroad with overstay

[Lana and Tom 1]

1 minute ago, aaron2020 said:

Only way to find out is a denial at a visa interview.

 

With a VWP overstay, you could apply for a visitor visa.  If you get a denial at your interview, they would be able to tell you if you have a ban or not.  

What would happen if I just book a plane and try to get in on an VWP? Is the worst case scenario that I will be denied entry and will need to fly back?

[Crazy Cat 42,547]

6 minutes ago, Lana and Tom said:

What would happen if I just book a plane and try to get in on an VWP? Is the worst case scenario that I will be denied entry and will need to fly back?

For what purpose?  Entering the US via ESTA with the intent to stay and adjust status is visa fraud. 

Edited October 26, 2020 by Lucky Cat

[Lana and Tom 1]

Just now, Lucky Cat said:

For what purpose?  Entering the US via ESTA with the intent to stay and adjust status is visa fraud.  

To see my spouse. I would still leave after 1 month or less.

[aaron2020 11,651]

21 minutes ago, Lana and Tom said:

What would happen if I just book a plane and try to get in on an VWP? Is the worst case scenario that I will be denied entry and will need to fly back?

The worse case scenario would be expedited removal which would mean a 5 years ban and complicating your situation even further.  

If there was an easy solution for you, we would tell you.

At this point, you will not be visiting the US.  You will need to wait out the I-130 spousal visa process.  If you have a 3 year bar, you will get a denial and be informed if a waiver is available.  Then you will have to go through the waiver process.  Expect this to take 18 months or more.  

Sorry.

Edited October 26, 2020 by aaron2020

[Lana and Tom 1]

Just now, aaron2020 said:

The worse case scenario would be expedited removal which would mean a 5 years ban and complicating your situation.  

thank you. then I guess I will not be able to return to the US for a year at least and he will come to Germany for extended periods. There doesnt seem to be any other option.

[HRQX 4,145]

37 minutes ago, Lana and Tom said:

What would happen if I just book a plane and try to get in on an VWP?

You'll need to reapply for ESTA and a denial is essentially guaranteed: https://esta.cbp.dhs.gov/faq

When do I need to reapply for an ESTA?

A new travel authorization may be required in any of the following circumstances:

• The traveler is issued a new passport
• The traveler changes his or her name
• The traveler changes his or her gender
• The traveler's country of citizenship changes; or
• The circumstances underlying the traveler's previous responses to any of the ESTA application questions requiring a "yes" or "no" response have changed.

It's now "Yes" for "Have you ever stayed in the United States longer than the admission period granted to you by the U.S. government?"

[Boiler 46,246]

Actually in this situation not eligible to use the VWP so ESTA is irrelevant.

[Duke & Marie 1,389]

6 hours ago, Lana and Tom said:

this is what he wrote after we spoke on the phone:

If you and your partner marry, your partner would be able to submit an I-130 petition for you, which is the first step in obtaining a Green Card as the spouse of a U.S. citizen. However, you would still not be able to obtain your Green Card from within the U.S. as your VWP status has expired. This type of petition usually takes between 4 and 6 months, and afterward there is consular processing in your home country. In all events you should account for around a year before you are able to obtain your immigrant visa.

Finally, in all events you should make sure that you leave the U.S. within 6 months of the expiration of your VWP period of admission. Based on our discussion you had indicated that the VWP period had expired a few weeks ago, so I would recommend leaving in fall at the latest (ca. September / October).

Wow your lawyer sucks.... I highly recommend you get rid of him

 

you could have filed i130/i485/i765 together and had work and travel authority in maybe 3 or 4 months..

 

please get rid of them and save your money, immigration is expensive enough without paying lawyers for terrible advise and service... if anything they’re notorious for messing immigration paperwork up and slowing the process considerably 

 

kiss your ESTA goodbye.. probable no B2 due to overstay and immigration intent... I hope your spouse is able to travel to Germany 🇩🇪 for visits until consulate processing is finalised 

Edited October 27, 2020 by Duke & Marie

[SteveInBostonI130 3,489]

Applying for a B1/B2 might be beneficial in your specific case because it will let you know if you have a bar on your record or not, instead of finding out about a year from now when you go for your spouse interview.

 

Is the US embassy in Germany processing B1/B2 visas?

[jan22 3,068]

If I understood the dates correctly (last day of authorized stay was Apr 19 and departure day was Oct 16), your overstay was precisely 180 days.  If so, technically you would not have incurred a ban.  The three year ban is for an overstay of "more than 180 days and less than one year..." (emphasis added).  So, the ban starts after you stay into the 181st day.  You will find out only at the visa interview whether or not the ban has been applied.

[SalishSea 18,218]

10 hours ago, Lana and Tom said:

What would happen if I just book a plane and try to get in on an VWP? Is the worst case scenario that I will be denied entry and will need to fly back?

But how?  Your ESTA has been revoked?

[Lana and Tom 1]

5 hours ago, SteveInBostonI130 said:

Applying for a B1/B2 might be beneficial in your specific case because it will let you know if you have a bar on your record or not, instead of finding out about a year from now when you go for your spouse interview.

 

Is the US embassy in Germany processing B1/B2 visas?

It does not seem like they are. The exeption from the travel ban due to covid seems only applicable to Visa through ESTA.

[HRQX 4,145]

1 hour ago, Lana and Tom said:

It does not seem like they are. The exeption from the travel ban due to covid

Yes, they are. Look for B-1/B-2 in the rows for Berlin, Frankfurt, and Munich in the September 2020 PDF: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics/monthly-nonimmigrant-visa-issuances.html

1 hour ago, Lana and Tom said:

Visa through ESTA.

ESTA isn't a visa.

[Just Paul 4,595]

13 hours ago, jan22 said:

If I understood the dates correctly (last day of authorized stay was Apr 19 and departure day was Oct 16), your overstay was precisely 180 days.  If so, technically you would not have incurred a ban.  The three year ban is for an overstay of "more than 180 days and less than one year..." (emphasis added).  So, the ban starts after you stay into the 181st day.  You will find out only at the visa interview whether or not the ban has been applied.

ESTA entry is only for 90 days.

[jan22 3,068]

8 hours ago, Paul & Mary said:

ESTA entry is only for 90 days.

I'm well aware of that, but, sorry, can't see the bearing of that statement as a response to my post.  The OP appeared to have stated the end date of her authorized stay as Apr 19 -- it wouldn't matter if that last day of authorized stay was from a 90-day ESTA entry or a 6-month B2 entry.  From that date to her stated day of departure is 180 days.  ESTA vs B2 visa entry has no bearing on the calculation.

Edited October 28, 2020 by jan22