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Looking for advice. My sister in law lived in the US for 4 years, overstaying her visa. She worked, paid taxes and rent. She came back to UK a year ago due to family illness and now wants to return. She has booked a return flight via Dublin but has no intention of returning. She has convinced my husband to travel with her, assuming they get in he will return after the 2 weeks. So my question is will she get in? If she doesn’t is there implications for my husband? Could this stop him traveling to US in future?

Also, as there are immigration checks at Dublin, is this where she would be denied entry or would she get to US and be denied?

RoboKaren
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Confused
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    What exactly is the purpose of your husband travelling with her? – Anthony Grist Nov 11 '18 at 16:13
  • She wants support as she’s unsure of whether she’ll get entry or not.. – Confused Nov 11 '18 at 16:23
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    Will she get away with entering although she has broken her visa conditions in the past and intends to stay in the US indefinitely without the appropriate visa? Unlikely, but possible if US immigration officials are not sufficiently alert. – dbkk Nov 11 '18 at 16:31
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    And they would have to be entirely asleep to not notice the four year overstay that will pop up as soon as she presents her passport. – Michael Hampton Nov 11 '18 at 17:02
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    In answer to the second question, Dublin has preclearance so the decision about whether to admit her will be made in Dublin. If she's refused, she won't get on the plane. (I am not sure whether the airline would refund her fare in that case.) – Nate Eldredge Nov 11 '18 at 17:03
  • @NateEldredge: doesn't it depend on which flight it is? – Tomas By Nov 11 '18 at 17:04
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    @TomasBy: Oh, are there flights from Dublin that don't use the preclearance? – Nate Eldredge Nov 11 '18 at 17:05
  • @NateEldredge: I don't know. I thought so. – Tomas By Nov 11 '18 at 17:07
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    What type of visa does she have? Paying taxes implies she has an SSN, which means she probably had some form of work visa. How long did she overstay? – Doc Nov 11 '18 at 17:26
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    @Doc could she have paid taxes through an ITIN? – mdd Nov 11 '18 at 17:36
  • In her previous visit to the US, did she enter under the visa waiver program or with a B visa (or is she Canadian or Bermudian)? – phoog Nov 11 '18 at 17:40
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    @NateEldredge I cannot imagine that the airline would refund the money unless the ticket were a refundable ticket. Airlines generally disclaim responsibility for immigration matters. – phoog Nov 11 '18 at 17:45
  • @doc I’m not sure, as far as I know her and partner went on a holiday and never returned. Partner had a job lined up and is still there hence the reason she wants to go back. She was there for at least 5 years (already gone when I met now husband). – Confused Nov 11 '18 at 17:48
  • @phoog I don’t know, I think it was 2012 if that makes any difference. She is a British citizen. – Confused Nov 11 '18 at 17:50
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    Has she applied for ESTA? Was it granted? – phoog Nov 11 '18 at 17:51
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    Yes ESTA was granted! I was very surprised, but I’ve no idea how truthful she was. – Confused Nov 11 '18 at 17:55
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    We seriously need to know whether she lied to get the ESTA. In general, the whole things seem badly conceived. Maybe if she pulls the brake now she'll get a chance later of entering the US. – Quora Feans Nov 11 '18 at 19:56
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    She's booked a return ticket to fool the authorities into thinking she'll be in-country temporarily when in reality she fully intends to overstay yet again? This is ... not encouraging behaviour. I really think you should have a word with your family members. – Lightness Races in Orbit Nov 12 '18 at 02:01
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    There is no answer possible other than 'No, do not do it' and the reasons for that answer are so many that it's not even worth mentioning them all. – Bas Jansen Nov 12 '18 at 10:42
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    Your better off hiring an experience travel lawyer. That way you can get advice based on years of experience. Maybe you can just apply tor immigration status with the intent of become a permanent citizen, only a lawyer knows. Better than lying a 2nd time and being banned permanently. – cybernard Nov 12 '18 at 23:47
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    @mdd: if 'work[ed]' means employment, which is what most people usually mean, you can't legally be employed in US without SSN (and authorization based on status, for aliens) although you can receive other kinds of income and pay taxes for them with ITIN. – dave_thompson_085 Nov 15 '18 at 08:50
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    Thanks everyone, your advice has all been really helpful and I’ve basically told him I’m not happy with him risking it for her. Ive convinced him to only travel to Dublin with her. Seems there was way more to the situation than I had been told (lies on esta, name changes etc) and I can’t sit back and not say anything. She can risk what’s she wants and he can support her without risk. She’s crazy imo. Anyway thanks again!! – Confused Nov 17 '18 at 18:07
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    What ultimately happened with this saga? – Augustine of Hippo Dec 10 '18 at 17:48
  • @honorary world citizen the trip is not until January, I’m still worried as she’s determined to make him go with her. She’s booked tickets and he’s telling me one thing and her another...causing all sorts of drama! I will fill you in once it’s happened. Thanks for asking. – Confused Dec 13 '18 at 23:46
  • @Loulou I suspect she was able to slip through and is back in the USA? – Augustine of Hippo Feb 22 '19 at 23:27
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    @ThE iLlEgAl aLiEn no she was stopped at pre-clearance at Dublin and refused travel. No consequences though, they advised her to apply for a spouse visa (her wife/civil partner) is legally living in us. – Confused Feb 24 '19 at 00:37

3 Answers3

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Her paying rent and taxes doesn’t give her any brownie points with US immigration.

So my question is will she get in?

Her chances are slim to none although not zero. People get admitted mistakenly. If found out on a subsequent interaction with immigration the hammer will come down, hard.

If she doesn’t is there implications for my husband?

She’s an adult so minuscule to no implications for him - unless he somehow gets drawn in during the questioning and tells a material lie to US Immigration which is found out. In which case he will be banned, for life.

Could this stop him traveling to US in future?

See response to previous question.

Also, as there are immigration checks at Dublin, is this where she would be denied entry or would she get to US and be denied?

Whether it unfolds at preclearance in Dublin or in the USA does not change anything. The same conditions and penalties remain.

CONCLUSION

Looking for advice

Don’t do it. However, I don’t know her life circumstance that compels her to attempt this in this time of increased immigration scrutiny. Sometimes a human being is compelled to break the law. Over here, we judge no man.

My advice to her would have been to purchase the ticket at the last minute at the airport (or refundable ticket) in which case when she is denied as I expect she will, she can get a refund of the airfare under the 24 hour free cancellation policy.

Finally she absolutely should not lie to immigration if caught out and questioned about her overstay. That way she only incurs the ten year ban for overstay, instead of a permanent ban for misrepresentation. Ten years seems far off, but at least the window to return remains open.

Augustine of Hippo
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  • Thank you for taking the time to answer, much appreciated, you’ve confirmed what I thought. I honestly can’t get my head round why she thinks it’s ok and why he thinks he should help/support her! – Confused Nov 11 '18 at 17:43
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    A small correction. If she is refused entry at Dublin, she will have some penalties. But she is refused at the USA, on top of those penalties she will be detained and the airline will probably charge her the price of the flight that returns her to UK or Dublin. – SJuan76 Nov 11 '18 at 17:58
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    One should double check whether 24 hour free cancellation would apply to a last minute ticket. In the US, the law is just that airlines must allow 24 hour cancellation with full refund, but only if the ticket is purchased at least 7 days before the flight, and most airlines don't allow anything more than that. – Nate Eldredge Nov 11 '18 at 17:58
  • @SJuan76 The airline will typically return her with her return portion of the ticket and not seek more money. – Augustine of Hippo Nov 11 '18 at 18:00
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    @Loulou Clearly living in the USA means a lot to her. Too bad she did not make an attempt to obtain residency. IMO under the circumstances she owes it to herself to at least try. Waiting for the 10 year ban to pass is a long time. – Augustine of Hippo Nov 11 '18 at 18:06
  • I think I agree she should try if it means so much to her. My main worry/issue is my hubby and what it means for him, I have family in the states and plan to visit in the next year or so and would hate for him to end up losing out due to her situation. – Confused Nov 11 '18 at 18:14
  • Thanks everyone for all your help much appreciated – Confused Nov 11 '18 at 19:22
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    I disagree that the husband has no risk unless he tells a lie. If the sister-in-law is denied entry then I think there is a risk they will deny him entry just for travelling with her. Remember they don't need proof. Then he has to explain his denial every time he travels to the US. – DJClayworth Nov 11 '18 at 19:44
  • @DJClayworth I respectfully disagree. He is not a minor and as I pointed out, unless he gets drawn into her questioning her violation is not going to impact him. Of course in practice there is nothing like zero probability however those risks are minuscule. very minuscule – Augustine of Hippo Nov 11 '18 at 20:07
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    @HonoraryWorldCitizen Why wouldn't he be "drawn into her questioning" if they're traveling together? Or do you propose they'd lie and each claim to be traveling alone and hope CBP doesn't realize. – Zach Lipton Nov 11 '18 at 20:42
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    @ZachLipton She's an adult and so is he. These are not minors depending on one party. Her immigration history has no bearing on his. They are not joined at the hip. Let's not become scaremongers. So far as he does not lie, he has virtually no problem. There are several incidents of people traveling together and one person refused entry and the other let in. You can watch episodes of US Border Patrol on YouTube. – Augustine of Hippo Nov 11 '18 at 20:57
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    I agree he has low risk. I just don't think it's no risk. – DJClayworth Nov 11 '18 at 21:23
  • It seems to me that the misrepresentation ban concerns one lying to get oneself into the US, though it's not clear from the statute. – phoog Nov 12 '18 at 04:49
  • If he's on the same PNR as her (which seems not to be the case) I could see some small chance that his ticket could be at risk. E.g., if the airline cancels hers and cancels his at the same time. Small chance, but if I were him I'd be comfortable travelling with her as long as not booked on same ticket. (Though he should NOT use that as an opportunity to try to mislead CBP.) – James S Nov 12 '18 at 05:34
  • So it'd be better then to just stay home at UK, and just flip off whatever is left in the US, because she would not be able to do anything else anyways (you can either stay and thus never even try to go back, or you can try and get refused, or worse, punished for illegal migration, in either case still not getting back)? – The_Sympathizer Nov 12 '18 at 07:09
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    Generally immigration assumes you aim to overstay or seek employ, and allow you to convince them otherwise by presenting facts. The problem for him is that if he's traveling with a known overstayer, he has no ability whatsoever to rebut the presumption that he will overstay. And that can come up again later in future travel. – Harper - Reinstate Monica Nov 12 '18 at 10:04
  • @Harper Total over exaggeration. He’s not a child. He’s a married man with a spouse. – Augustine of Hippo Nov 12 '18 at 10:44
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    @HonoraryWorldCitizen And he's travelling with his sister, to whom he might be presumed to have an even closer connection than to his wife. – David Richerby Nov 12 '18 at 13:49
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    @DavidRicherby I doubt many people with spouses and children are closer to their siblings than to their spouses or children. Sure, there's a chance that they might think he's abandoning his family to move to a foreign country with his sister, but it seems rather unlikely. – phoog Nov 12 '18 at 14:54
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    @phoog My point is that this obviously isn't a normal kind of situation so it's not clear that CBP will make normal kinds of assumptions about it. I mean, sure, it would be weird if this guy was abandoning his wife and kids to go live illegally in the US with his sister. But it's already weird that he's accompanying her at all, so the barrier to this weird conclusion is much lower than it would be under normal situations. – David Richerby Nov 12 '18 at 15:00
  • What if she traveled to Canada or Mexico, and then tried to enter the US by car? My understanding is that (at least at some crossings) there are only random checks, so she may get lucky and get through... – user000001 Nov 12 '18 at 15:19
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    @user000001 at every land border I've crossed (all between US and Canada), every car is checked. The Mexican border is famously very heavily patrolled. Crossings into the US from Canada where checks are relaxed are all special cases like Hyder, Alaska and Northwest Angle, Minnesota. It's unlikely that it would be possible to find a spot on either border where this would have a good chance of success. – phoog Nov 12 '18 at 16:00
  • @DavidRicherby But it's already weird that he's accompanying her at all What is weird about it? – Augustine of Hippo Nov 12 '18 at 16:32
  • @HonoraryWorldCitizen that she's an overstayer and returning, and the presumption that she aims to overstay again will be 100 times higher and more difficult to overcome. What would it take to overcome that? – Harper - Reinstate Monica Nov 12 '18 at 16:38
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If he travels with her, it is going to be very difficult for your husband to give her much support without lying. For example, if asked about the purpose of the trip is he really going to say "To see if my sister can get back into the US to resume her overstay and work there.", or will he say something that supports her case at the risk of lying and being banned?

It would be much safer for him to go to Dublin airport and wait outside the secure area until either she calls to say she is on the plane or she is denied entry. He can provide emotional support and help getting home if she is not allowed to fly.

Patricia Shanahan
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    I agree, I was waiting for something like that across the answers. he can be supportive on the way to Dublin airport, then during the 8 hours of the flight but then he is useless. Either he is admitted to the US and she is on her own, or he is dragged a way or another into her interrogation - in which case he is not there to provide comfort but to answer questions. – WoJ Nov 12 '18 at 13:11
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    In America, lying to immigration is a ban for life. My reading of OP was that their idea of "support" means he's there to lie for her. – Harper - Reinstate Monica Nov 12 '18 at 16:43
  • @Harper it's not clear from the statute, but it seems to imply that lying for oneself is necessary to trigger the ban. Lying in general, however, is definitely a violation of 18 USC 1001. – phoog Nov 12 '18 at 19:57
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    @phoog Suppose he claims to be entering for some legitimate visit purpose, such as sightseeing, but is really entering to assist his sister in overstaying and working in the US. Has he lied for himself, because they would certainly not admit him if he told the truth? – Patricia Shanahan Nov 12 '18 at 20:09
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    @PatriciaShanahan probably. But if he just lies about his sister then it's not clear to me whether he would trigger the ban under 8 USC 1182(a)(6)(C). I don't know whether there's any precedent one way or the other. 18 USC 1001 would clearly apply, however, though a prosecution is unlikely, and he might be inadmissible under 8 USC 1182(a)(6)(E) for helping another "to enter or to try to enter the United States in violation of law." – phoog Nov 12 '18 at 20:28
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    @phoog You may well be right in theory. In practice, he would have to lie about himself. A person trying to enter the US under the visa waiver program is very likely to be asked the purpose of their travel. – Patricia Shanahan Nov 13 '18 at 19:35
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    @PatriciaShanahan it would be difficult to argue that failing to mention the sister's intention would be a misrepresentation of the brother's purpose. He is visiting as a tourist for two weeks and he is traveling with his sister to offer companionship to her. After establishing that, it would only be necessary to lie about her plans to protect her. – phoog Nov 13 '18 at 19:43
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I would echo the answer of Honorary World Citizen, but I would add the following legal considerations:

If when she overstayed previously she entered using the visa waiver program, she is legally ineligible to use the visa waiver program again. If she lies about that on the ESTA application or at the border, she will be permanently inadmissible.

Depending on the circumstances of her previous overstay, she may have a three- or ten-year ban, counting from the date of her departure from the US. Based on the facts you have described so far, it is likely that she has nine years remaining in a ten-year ban.

phoog
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    We should not forget your previous answer: https://travel.stackexchange.com/questions/64200/how-does-the-us-know-if-someone-has-overstayed the US does not know for sure who's overstaying, so she might be flying under the radar. – Quora Feans Nov 11 '18 at 20:12
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    @QuoraFeans these days, the chance that the overstay of someone who flew into and out of the US has gone undetected is very low indeed. – phoog Nov 12 '18 at 00:48
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    +1. This will work out to a very bad idea if she ever intends on trying to legally stay in the US. Misrepresentation is a permanent ban without a mechanism to lift it. Also you can never apply for permanent residence while in the country illegally (unless laws get changed at some point). – xyious Nov 12 '18 at 18:57
  • @xyious spouses of US citizens (maybe immediate relatives generally; I don't remember) can apply to adjust status even if they are out of status. In other cases, you are correct. – phoog Nov 12 '18 at 19:27
  • I was told the same thing when I was in that situation in 2001, however, recently everything I read and hear seems to suggest otherwise. People are made to leave their wife and children to go back to their country to apply for immigrant visas. Can't find any evidence either for or against right now, though. – xyious Nov 12 '18 at 19:45
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    @xyious You are wrong on both counts. There is a waiver for misrepresentation/fraud and second so far as you are inspected and admitted (including erroneously), you can adjust status in the USA. https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume9-PartG.html Being admitted erroneously is not the same as sneaking in without inspection in which case you have to leave before returning. – Augustine of Hippo Nov 13 '18 at 12:10
  • OK, thank you for clearing that up, @HonoraryWorldCitizen. – xyious Nov 13 '18 at 15:34
  • @xyious there's one loophole there and it's applying for asylum. But that's a very specific (though frequently abused I know) channel to gain entry into the country. – jwenting Dec 11 '18 at 05:02
  • @jwenting it should perhaps be noted that the number of ESTA-eligible travelers who can get past the first stage of an asylum application must be vanishingly small, so the existence of that loophole in this case is almost certainly purely academic. – phoog Dec 11 '18 at 05:09
  • @phoog true, but it's a way for many to disappear into illegality in the US permanently (or at least until caught in an ICE raid somewhere, which can take years). – jwenting Dec 11 '18 at 05:24
  • @jwenting "many"? I doubt it. I'm not aware of ESTA-eligible travelers doing that; if they want to enter and then disappear into illegality, they can use ESTA for that. But when I said "get past the first stage" I meant the credible fear interview. Failing the credible fear interview leads to deportation. But in this case, the immigration officer is in Dublin, so it won't even get that far. – phoog Dec 11 '18 at 05:39