Post
by Kayalami » Fri Feb 04, 2005 6:12 pm
Ryan,
1. Every person intending to enter the US (unless holding an immigrant visa whence this is moot) is presumed to be an immigrant unless he/ she is able to prove to the satsifaction of both the consular officer (if applicable) and the inspector at the Port of Entry that they have a residence abroad they do not intend to abandon as evidenced by relevant compelling ties e.g. employment, family etc. (a spin off from Sec 212 of the INA).
2. The US has granted certain nationals the privilege of seeking entry (in a non immigrant capacity) without requring a visa. These include Canadians/ Bermudans (different sec of the INA) and nationals on the VWP.
3. A person admitted into the US under the VWP who fails to adhere to the terms and conditions of entry including overstaying can no longer use the scheme and must apply for a non immigrant visa B1/B2 at an appropriate consulate. However exceptions apply where there are compelling circumstances beyond your control resulting in an overstay e.g. a doctor advising against travel due to a medical condition. Did you apply for a compassionate extension of admission based on this?
4. A challenge for you is that you do not appear to have compelling ties to Ireland given your frequency (and more significantly length) of visits to the US and further you have a US g/f. Clearly with all due respect you have a strong incentive to remain in the US even if admitted temporarily.
5. Likwise you mention a re-entry susbsequent to the overstay - not being privy to any conversation you had with the inspector then (did he/she ask you about your length of stay on your prior VWP entry?) there may be a 'misrepresentation aspect' in your files making a B1/B2 application even more of an issue.
6. Depending on the relationship with your US g/f and pursuant with you both wishing to live in the US (or her not being able to come to Ireland) then it may be worth going down the spousal route i.e she sponsors you for a K1 fiance visa and you get married in the US with subsequent adjustment of status. There may be a requirement or otherwise for you to obtain certain waivers based on the 'actual period of overstay' with subsequent potential bans from entry into the US.
Good luck
