overstaying visa- consequences, please help.

[keejo]

I tried before coming to get the right visa but everything took time and i didnt fit any catagories, i had just been raped (a month before i came here) and a friend here in the US offered to give me a place to live and help me out whilst i sorted myself out, when i got here i was also dealing with 14 years of memories from child sexual and physical abuse. I do not feel safe in the UK right now, i never have, i get depressed and suicidal and since being here (9 months now- 3rd visa waiver) i have been happy.

I am in a same sex relationship and my partner will go to work abroad in september/november by which time i will be almost 6 months over the waiver, i plan to then go back to the UK or europe and my partner will join me there. However, we are worried i will never be allowed back in the States. I dont know what to do for the best.

Will i get questioned when i leave? What immigration officer is going to accept the reason i stayed here illegally was because i like feeling safe?! I was treated like a criminal the last time i came through immigration and i felt humiliated and cried, which only made the officer accuse me of having something to hide. Im not working here, my partner fully supports me. And would do so if i could stay permanantly which is never going to happen.

Any tips or advice would be greatly welcomed. Thank you.

[Kayalami]

I'm sorry to hear of your problems. From an immigration/ visa point of view which may seem harsh the facts are:

1. You are abusing the VWP - it is for temporary visits to the US not a backroute for US residence. As a rule of thumb you should use the VWP to its max once in every 12 months. As things stand you spend more time in the US than outside it which is blatantly asking for trouble. You were extremely lucky to get your 3rd admission. If you try another entry you may get placed under expedited removal procceedings for fraudently seeking entry as a non immigrant with the intent to reside in the US - ER leads to a 5 year ban from the US..to add insult to injury you may get hancuffed and spend the time to your flight in custody. Add to this you will never be able to use the VWP ever.

2. Overstaying in the US by 180 days triggers a 3 year ban from returning to the US. Overstaying by 365 days triggers a 10 year ban from returning to the US. The 10 yr ban is cumulative the 3 year isn't i.e. if you overstay by 10 days on 1st VWP then 10 days by 2nd VWP you are ok for the 3 yr ban but have accumulated 20 days towards the 10 year ban. In any case overstaying is a violation of the VWP and as such you may never use the scheme again. Instead you must apply for a non immigrant B1/B2 visa. The first consideration for this is whether you have adhered to US laws - you haven't and then a review of any compelling ties you have to the UK - it appears you have none.

3. When departing the US the airline will collect your I-94W departure record and forward it to DHS. The exit component of US-VISIT has also gone live at several ports so you could be fingerprinted and photographed when departing the US by DHS - they will know you overstayed and add your details to the relevant databases to root you out if you ever seek re-entry. In any case burden of proof is on you whenever you next seek admission to tell the truth and if you lie about an overstay then expedited removal.

4. On the matter of the assaults as a reason for overstaying - you have not sought legal advice on this as a possible ground for an asylum claim which impacts on your credibility before US officials. Have you sought appropriate support from the UK e.g. social services, police - there is plenty here. As unfortunate as this issue is it can't be a sole purpose for US residence. DHS could even go as far as to say it was an aftetthought on your part to prolong your stay - after all you've had 3 chances at entry to tell them of your case. The matter must be considered in its entirety and such is outside the scope of a bb - it should be handled by a competent attorney licensed to practice law in the relevant state.

5. US immigration law is Federal. The federal government does not recognise same sex relationships for distinct immigration purposes (on the presumption your partner is a USC) so there can be no derivative/ dependent petitions say for a green card.

6. Either explore again how you may legally reside in the US since without knowing any more facts about you e.g. professional qualifications etc then no one can review your options e.g. H1 etc. or live outside the US and visit in line with the spirit fo the VWP. IMHO you should not return to the US for at least 1 year when you leave this time.

sorry that may not be news you want to hear