Overstaying ESTA - what now?

[Macgomes]

Hello everyone,,

We are currently on an around the world trip, and our travel plans involve some 85 days in the US, then 1 month in Antigua, before then continuing on to Costa Rica and other places. However, the flight to Costa Rica is via the US, with some 4 days in between flights in New York (separate flights).

Ordinarily we imagined this to be fine, however, we now noticed that Antigua counts in the 90 day day-count, and that the second time in the US is not a re-entry, but rather still counts in the original 90 day period, which we are clearly exceeding. We are, however, already at the end of our 85 days in the US and all flights are booked.

How bad a situation are we in? What is the best course of action now? Can we switch to another VISA? Should we risk it? Will airlines cause problems or just the Immigration Officer?

Thank you!!!

[newacct]

It's not a matter of "overstaying" -- you leave the US within the 90 days -- it's a question of whether you will be allowed into the US for transit the second time, because usually you do not get a new 90-day VWP period if you have only been to Canada, Mexico, or adjacent Caribbean islands since your last VWP stay, and Antigua is an adjacent island in the Caribbean. My belief is that they have some discretion in applying this rule, and in this case, you are not abusing the trip abroad to "reset the clock" and stay another 90 days; you are just transiting, so they will probably allow it.

[vikram121]

If this is a marriage with a US citizen, overstay is forgiven for the spouse of the US citizen.

However, they should send the forms in ASAP, as "your friend" is technically deportable and can be picked up by ICE, how remote are the actual chances of that happening. After the forms are filed, "your friend" can stay in the US until the decision is processed.

[Bennett45]

The visa of any foreign national that overstays their period of stay is automatically voided. Immigration is very strict in its interpretation and application of this provision – overstaying by even a day will void your existing visa.The visa of any foreign national that overstays their period of stay is automatically voided. Immigration is very strict in its interpretation and application of this provision – overstaying by even a day will void your existing visa.