ESTA Overstay > Investment Visa

[jet323 1]

I have visited the US for the past 8 years on a fairly regularly basis. I used to work for a UK employer which involved a lot of travel, so I typically flew in/out of the US about 5 times a year alongside other countries. I've always had a clean record, and never once had an issue at a port of entry. I have always entered using an ESTA, and never once applied for or needed a visa.

 

Fast forward to this year - I entered the US just before March 2020 and for the first time in 8 years, I was actually taken to secondary for additional questioning due to my "previous travel patterns" - it was fairly regular so I'm surprised it didn't happen sooner. The actual questioning was really quite simple and over and done with after about 3 minutes, however I noted to the officer that my reason for visiting was to finalize some business paperwork, as I am investing into a US startup and plan to apply for the E2 Treaty Investor Visa (which is completely true).

After about 2 weeks into my visit, the pandemic hit extremely hard and the state I was in was sent into complete lockdown and flights were being canceled. Knowing I had 90 days, I decided to just wait things out and see what happens and rented accommodation for a longer period.

 

During the time I was in the US, I actually ended up getting what I believe to be COVID which sent me to urgent care (extreme fever for about 5 days), although at the time tests were unavailable so there was no way of confirming. I then, about 2 months or so later got sick again which actually ended up in an ER visit due to chest pains/heart rhythm issues. I'm young and don't have underlying conditions, so I think I just got unlucky and perhaps got sick twice. Given how bad things were being reported, I made the stupid decision to continue staying beyond the 90 days for the first time in my life. I applied for satisfactory departure, however I was denied for insufficient evidence/lack of reasoning (it was close to the time I went to ER) and ordered to return. I ended up overstaying my ESTA by 160 days in the end before returning to the UK in early November, put off by the horrible thought of flying during what was advertised as being a pretty infectious virus.

 

I now want to finally put my visa application in for the E2, which is a non-immigrant visa similar to that of the B1/B2 (but not considered a tourist visa). Should I expect that the above could kill off my chances, or is USCIS being a little more lenient due to the pandemic?

Edited November 18, 2020 by jet323

[Boiler 44,943]

Well you do not have a ban but  were pretty close to it, they may well wonder what you were doing for such a long time in the US, most people can not afford to holiday that long.

[SusieQQQ 11,586]

Hm

i think any leniency would have been found in the satisfactory departure decision itself, rather than in a CO trying to figure after the fact if it was unfairly decided (the fact is he or she almost certainly won’t even try, they will take the uscis decision to deny at face value). (It is a little strange yours was denied, as they do seem to have been lenient with these, even granting serial applications in some cases which is unprecedented )

 

I think a B visa would be an issue. Not sure if they would look differently at an E visa which has very different considerations. I would certainly expect it to come up at your interview though.

Edited November 18, 2020 by SusieQQQ

[jet323 1]

8 minutes ago, SusieQQQ said:

Hm

i think any leniency would have been found in the satisfactory departure decision itself, rather than in a CO trying to figure after the fact if it was unfairly decided (the fact is he or she almost certainly won’t even try, they will take the uscis decision to deny at face value). (It is a little strange yours was denied, as they do seem to have been lenient with these, even granting serial applications in some cases which is unprecedented )

 

I think a B visa would be an issue. Not sure if they would look differently at an E visa which has very different considerations. I would certainly expect it to come up at your interview though.

Yeah I was surprised by the satisfactory departure decision. Even in the response email of denial, they simply referred to what I said about applying for an E2, not towards the reasoning of my request. Super strange.

 

I don't expect to ever get a B1/2 unless I got extremely lucky, and it's not something I'm looking to apply for. The criteria for the E2 visa is drastically more complex than the B1/2 and is requiring an attorney alongside the super long criteria you need to meet. I'm just a little concerned as despite the huge complexity of the E2 over a B visa, it's still a non-immigrant visa.

Edited November 18, 2020 by jet323

[SusieQQQ 11,586]

5 minutes ago, jet323 said:

Yeah I was surprised by the satisfactory departure decision. Even in the response email of denial, they simply referred to what I said about applying for an E2, not towards the reasoning of my request. Super strange.

 

I don't expect to ever get a B1/2 unless I got extremely lucky, and it's not something I'm looking to apply for. The criteria for the E2 visa is drastically more complex than the B2 and is requiring an attorney alongside the super long criteria you need to meet. I'm just a little concerned as despite the huge complexity of the E2 over a B visa, it's still a non-immigrant visa.

Hmmm, that’s not a great sign tbh, that they were talking about the E2 then

 

No VWP, no B, so E seems your only route to get back? Did you get all the preliminary work done on the E as you intended between everything else happening?

Edited November 18, 2020 by SusieQQQ

[jet323 1]

Just now, SusieQQQ said:

What do you mean, they were talking about your E2 application in your denial for satisfactory departure? 

In the denial email, they said something along the lines of "you told us you were coming here to finalize things for your E2 application when you return home. you didn't need to stay for longer and there are flights available". I originally sent them my urgent care paperwork and I was ordered to quarantine for 14 days, but they simply didn't care.

[Boiler 44,943]

What has an E2 to do with Satisfactory Departure.

[jet323 1]

Just now, Boiler said:

What has an E2 to do with Satisfactory Departure.

Yep, it didn't make sense to me. I admit fault and 160 days is really pushing it - my excuse is lacking beyond the 2 cases of recorded medical visits, but I made the decision and I need to accept it.

 

I'm kicking off the E2 process paperwork wise with the attorney next week so I'll just have to see what happens. It's going to be a sad day after $6k+ in legal fees if it ends in denial, and then I'm pretty much stuck for some time until they become more forgiving.

[Boiler 44,943]

You overstayed for 160 days not 14 days, so I am not sure how that will make much sense to a CO.

 

You realise the Covid seems to be getting worse, how do you intend to come back?

[SusieQQQ 11,586]

1 minute ago, jet323 said:

In the denial email, they said something along the lines of "you told us you were coming here to finalize things for your E2 application when you return home. you didn't need to stay for longer and there are flights available". I originally sent them my urgent care paperwork and I was ordered to quarantine for 14 days, but they simply didn't care.

I kind of see their point though, to play devils advocate: within that 90 days, even being sick and quarantined for part of it, you only need a day to fly home. (There were certainly flights, I kept waiting for BA to cancel my booked flight to LHR so I could get a refund rather than a credit, but naaaah )

[jet323 1]

1 minute ago, Boiler said:

You overstayed for 160 days not 14 days, so I am not sure how that will make much sense to a CO.

 

You realise the Covid seems to be getting worse, how do you intend to come back?

Yeah, it's going to be a hard sell for sure and I don't have my hopes up.

 

I'm back in the UK and don't really intend to come back to the country until next year when things calm down COVID wise, but I still want to at least kick off the visa process and see how far I get.

 

2 minutes ago, SusieQQQ said:

I kind of see their point though, to play devils advocate: within that 90 days, even being sick and quarantined for part of it, you only need a day to fly home. (There were certainly flights, I kept waiting for BA to cancel my booked flight to LHR so I could get a refund rather than a credit, but naaaah )

Yep, I definitely regret the decision now but I can't turn back the clock. I think I'm going to need a genius plan by an attorney to convince them I won't do it again. How far my 8 years of previous entry/ext records matters, I don't know.

[SusieQQQ 11,586]

2 minutes ago, jet323 said:

Yeah, it's going to be a hard sell for sure and I don't have my hopes up.

 

I'm back in the UK and don't really intend to come back to the country until next year when things calm down COVID wise, but I still want to at least kick off the visa process and see how far I get.

 

Yep, I definitely regret the decision now but I can't turn back the clock. I think I'm going to need a genius plan by an attorney to convince them I won't do it again. How far my 8 years of previous entry/ext records matters, I don't know.

It’s like virginity. You can preserve it for years, but once it’s gone, it’s gone.

 

I really think it’s hard to tell how much it will count against you for this, though. Only one way to find out. (Is the UK even interviewing for E visas yet? Most embassies are still very restricted in terms of which visas they are interviewing for at present.)

[jet323 1]

1 minute ago, SusieQQQ said:

It’s like virginity. You can preserve it for years, but once it’s gone, it’s gone.

 

I really think it’s hard to tell how much it will count against you for this, though. Only one way to find out. (Is the UK even interviewing for E visas yet? Most embassies are still very restricted in terms of which visas they are interviewing for at present.)

I believe it's one of the few visas they are still accepting applications for. You can't physically enter the country with it at the moment due to the bans, but they are continuing to process applications for it alongside a limited number of other visa categories.

[SalishSea 17,503]

9 minutes ago, jet323 said:

I think I'm going to need a genius plan by an attorney to convince them I won't do it again.

That's not how that works.  

[jet323 1]

1 minute ago, Jorgedig said:

That's not how that works.  

It's more so a play on words/humor. I realize I am fairly screwed ultimately, but there's only one way to find out.