I overstayed my Visa in the USA. How can I now Return to the US?

Q. I came to USA in 2001 on B1/B2 visa along with my wife and a son. My second son was born in the USA in 2003.

I had applied for my Canada Permanent Residence  and we all came to Canada by car in May 2009. I overstayed my Visa in the USA. Now, all of my business, my house is still in the US. Is there any way for me to go back to US?  I had 5 years multiple visa issued in 1997, in Delhi India. Will the US Consulate have a record of my  overstay in the US? If I will apply for B1/B2 again from Vancouver on my new passport, it will be a problem?

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A. Without knowing how long you overstayed your status in the US, it is difficult to know what your rights are in terms of returning to the US. Generally if you overstayed in the US for 180 days or more, you are are subject to an automatic 3 year bar. If you subsequently apply for a US Visitor Visa (B-1/B-2), you have to disclose on the application form your overstay in the US. If you fail to do so, you could be charged with misrepresentation and be subject to a 5 year bar or more. However, there is hope! If you are subject to an overstay bar, you can still apply for a Waiver of inadmissibility to the US and be admitted despite your overstay in the US. The US Waiver process would delay your US Visa application but it is often the solution for applicants with prior immigration violations.

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Any information provided here does not constitute legal advice and is intended for general information only. Should you require legal advise, you are encouraged to contact a lawyer directly. All blog postings are public and are not subject to solicitor/client confidentially. Case results depend on a variety of factors unique to each case, and case results do not guarantee or predict a similar result in any further case undertaken by the lawyer.

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About Michael Niren

Michael is a graduate of Osgoode Hall Law School in Toronto. He is a member of the Law Society of Upper Canada, the Canadian Bar Association’s Citizenship and Immigration Section and the American Bar Association. He is frequently called upon to appear in the media to discuss Canadian and US immigration issues effecting North Americans. He has been interviewed by Canada AM, CTV, Canada News Net, the Globe and Mail and the Toronto Star and has given lectures on immigration topics overseas.

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