Tuesday 20 August 2019

'Often overlooked': Overstaying in US not always a problem, says lawyer

Immigration: Keith Byrne with wife Keren Zaga, baby boy Gabriel, step-son Ezra and daughter Leona
Immigration: Keith Byrne with wife Keren Zaga, baby boy Gabriel, step-son Ezra and daughter Leona
Shane Phelan

Shane Phelan

Overstaying the 90-day period allowed under the US visa waiver scheme is not in itself fatal to a subsequent visa or green card application, according to an Irish-born US immigration lawyer.

New York-based James O'Malley said that, generally, if the person falls into a category where they would otherwise be eligible for a green card, the overstay can be overlooked.

"Unlawful employment is often overlooked as well," he told the Irish Independent.

However, in his experience, a blind eye will not be turned to a criminal history.

"What is not overlooked is if that overstay is combined with a conviction or a conviction which was not originally declared," he said.

Getting into the US can be a tricky business for people with prior convictions. The US Embassy in Dublin advises that if someone has ever been arrested, cautioned or convicted of an offence anywhere in the world, they are required to declare it when applying for a visa.

It warns that in cases where an arrest resulted in a conviction, they may be permanently ineligible to receive a visa. The type of offences which would render someone ineligible for entry are outlined in the US Immigration and Nationality Act, which specifies crimes involving controlled substances and "moral turpitude".

The latter category can cover everything from murder and manslaughter to robbery, theft and fraud.

Irish-born US immigration attorney Caro Kinsella, who is based in Florida, told the Irish Independent that Customs and Border Protection could also deny entry if a person admitted to an arrest where there was no conviction.

However, she said that, in her experience, US immigration authorities were able to differentiate between minor offences and more serious ones.

"We have assisted many people in obtaining temporary visas and green cards who have past arrests and convictions," she said.

"Each case is viewed on a case-by-case basis and with the correct waiver applied for evidence presented for a specific case, US immigration is willing to forgive one's past."

Irish Independent

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