Did I overstay? What are the consequences?
Replies: 7 - Last Post: Jul 11, 2013 11:04 PM Last Post By: Dutch_Uncle
Jul 8, 2013 4:27 PM
Did I overstay? What are the consequences?Im a world cyclist and German citizen and entered the USA by plane with an ESTA through the visa waiver programme. After cycling through the USA for about 2 months I finally left the USA by crossing the border to Mexico. I then cycled about 4 months through Mexico until I left Mexico by crossing the border to Belize. I then continued towards South America.
I thought I did everyting right, since I thought the visa waiver programme allows me to stay in the USA for 3 months and I left it after 2 months to Mexico. But now I found out I actually had to leave whole Noth America within those 3 months. So does that mean I theoretically spent about 6 months in the USA although I was there only 2 months and 4 months in Mexico?
I got an entry stamp of the USA in my passport, but no exit stamp. And I got an entry and exit stamp of Mexico.
So what will happen now if I want to enter the USA again? Will they know at all that I didnt leave North America for 6 months? How do they wanna know? What will be the consequences? What will happen if I apply for another ESTA or for an USA visa? Will I have to pay a fine?
I appreciate any help.
Jul 8, 2013 6:08 PM
1There have been a zillion threads about this on the TT. I'm no expert on it at all, so this might be wrong, but it seems that (maybe) your stay in South America would qualify as having "left North America." But I'm not certain. What you need to do is check with the U.S. embassy and simply ask them about it.
Do not simply re-enter. The consequences of that are far more serious than they once were. The same is true of the EU, where (I believe, from what I recall reading on the TT) that a single overstay of a "Schenger" (spelling?) visa will result in a lifetime ban from the EU. So it goes both ways.
Every country is becoming much tighter on this kind of thing, because of the post-9/11 increases in border security. (I was once searched twice in Germany, the second time after walking 100 feet down a corridor with no windows or doors after going through the first check point.)
As an American who genuinely welcomes foreigners to this country, and who enthusiastically offers travel advice especially to Europeans in search of our wide open spaces, I say all of this to you not out of a punitive spirit but out of a protective one. Don't count on any flexibility in the system. To my knowledge, it (flexibility) no longer exists. As a German, you know about "following the rules," and on this set of issues the United States has out-Germaned the Germans.
So learn the rules and follow them to the letter. If there is any ambiguity, assume the worst. I hate to put it that way, but I really don't want to see you get in trouble over this.
HAVE A GREAT TRIP
Jul 8, 2013 9:05 PM
2Im a world cyclist and German citizen and entered the USA by plane with an ESTA through the visa waiver programme.
When you entered the US by air, did you only have a one-way ticket?
Whatever ... because the US does not have a record of your leaving the US Plus (including Mexico etc) within time - only leaving the US for Mexico after two months - on the face of it you seem in breach of the 90-day Visa Waiver conditions, but I am far from certain on this point.
The fact that you eventually did leave the North American zone (for South America) doesn't worsen your case, but I am not sure it assists much either - the law as it's written is fairly illogical on this point.
In terms of pleading your case, so that you might remain eligible for ESTA-VWP status in the future, I can offer no genuine advice - this might require some legal assistance, or a detailed letter to US authorities. Good luck.
Jul 9, 2013 6:07 AM
3Much of what has been written about the VWP on TT is close but not 100% accurate. The 90 days in North America is between your first entry to the US and your last departure from the US. Additional time in North America before your first entry to the US or after your last departure from the US will not give rise to an overstay. So you only spent 2 months in the US, the 4 months in Mexico do not count. Because the US does not have exit controls there is the additional issue of showing that you actually left the US after 2 months, did you get a green I-94W form stapled in your passport, which you are supposed to return to a US border official just before your cross the Mexican border? The US CBP website assumes that you have one but these days if you arrive by air you probably do not unless you specifically request it, their website roughly states:
If you departed by land you will need to take steps to correct the record. If you do not validate your timely departure from the United States, or, if you cannot reasonably prove you departed within the time frame given to you when you entered, the next time you apply for admission to the U.S., Customs and Border Protection (CBP) may conclude you remained in the U.S. beyond your authorized stay. If this happens, your visa may be subject to cancellation or you may be returned immediately to your foreign point of origin.
Under the Visa Waiver Program (VWP), visitors who remain beyond their permitted stay in the United States cannot reenter the U.S. in the future without obtaining a visa from a U.S. Consulate. So if you are a Visa Waiver Program visitor who traveled by land to either Canada or Mexico, it is particularly important for you to register your timely departure when you exited the U.S. If you fail to do so and you arrive at a U.S. port of entry seeking admission under the Visa Waiver Program without a visa, CBP Officers may order your immediate return to a foreign point of origin. If you are a VWP visitor and you left the U.S. by an air or sea carrier, you don't need to worry.
If you failed to turn in your I-94 Departure Record, please send it, along with any documentation that proves you left the United States to:
DHS - CBP SBU
1084 South Laurel Road
London, KY 40744
The London, Kentucky office does not answer correspondence, so please do not ask for confirmation that your record has been updated.
To validate departure, CBP will consider a variety of information, including but not limited to:
•Original boarding passes you used to depart another country, such as Canada, if you flew home from there;
•Photocopies of entry or departure stamps in your passport indicating entry to another country after you departed the United States (you should copy all passport pages that are not completely blank, and include the biographical page containing your photograph); and
•Photocopies of other supporting evidence, such as:
•Dated pay slips or vouchers from your employer to indicate you worked in another country after you departed the United States,
•Dated bank records showing transactions to indicate you were in another country after you left the United States,
•School records showing attendance at a school outside the United States to indicate you were in another country after you left the United States, and
•Dated credit card receipts, showing your name, but, the credit card number deleted, for purchases made after you left the United States to indicate you were in another country after leaving the United States.
To assist us in understanding the situation and correct your records quickly, please include an explanation letter in English. Your statement will not be acceptable without supporting evidence such as noted above. You must mail legible copies or original materials where possible. If you send original materials, you should retain a copy. CBP cannot return original materials after processing.
We strongly urge you to keep a copy of what you send to DHS-CBP and carry it with you the next time you come to the United States in case the CBP Officer has any questions about your eligibility to enter. Carrying those materials with you will also allow your record to be corrected at the time of entry if, for some reason, the London, Kentucky office has not yet done so.
Jul 9, 2013 2:02 PM
4Good information ...and as I alluded to (but did not fully spell out as Mark did), if you arrive by air and depart by land, there can be a mis-match in your VWP record (including no I94-W), unless CBP took an electronic record of your departing the US at the Mexican border. Such a mis-match could result in giving the appearance of having breached the 90-day limit, even though you stayed in the US for only two months.
The appearance of a breach may be sufficient to get you barred next time. Anyway - as Mark identifies - sending full details to CBP Kentucky should resolve matters for you.
Jul 10, 2013 6:50 PM
Jul 11, 2013 6:49 AM
6#5 I think the idea that you can just drop round a US Embassy Consular Section and have a chat as you suggest is seriously out of date. You might get in without an appointment if you are a US citizen, the OP is German, but otherwise you will not get past the sidewalk. You can call to make an appointment to apply for a visa or ask for information on if you need a visa but these days you often have to pay for a premium rate call and the OP has no need to as he has not overstayed.
Jul 11, 2013 11:04 PM
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