Barred from the US for 10 years for unlawful presence, but have been traveling in and out of the country via the ESTA waiver program

Question

Last year I applied for my immigrant visa because I am married to an American. I was denied at the embassy during the interview because I stated that I stayed over 180 days on my previous visa which I had as a kid to follow my parents for their work. I was suppose to leave in 2005, but stayed until 2007. Therefore during my interview they told me I had a 10 year ban and had to wait to reapply. Now I am about four months from completing my 10 year ban and would like to reapply again.

Now to the actual question :

During the past 10 years, I have been in and out of the US as a tourist going via ESTA, and everything went well with customs. Now that I want to reapply for my immigrant visa, do you think they can hold it against me since I have been back to the US during my 10 year ban?

Answer 1

You need an immigration lawyer ASAP. You might have a permanent bar to entering the USA. For you own benefit ignore any answer that seeks to downplay the seriousness of your situation.

Aliens Unlawfully Present after Previous Immigration Violations

B) Section 212(a)(9)(C)(i)(I) of the Act - The Permanent Bar

This provision renders an individual inadmissible, if he or she has been unlawfully present in the United States for an aggregate period of more than one (1) year, and who enters or attempts to reenter the United States without being admitted.

An alien, who is inadmissible under section 212(a)(9)(C)(i)(I) of the Act is permanently inadmissible;

In your case your attorney could argue your subsequent visits under ESTA were with inspection and hence you do not have a permanent bar. The problem is that even then they may start tolling the ten year bar for you starting from your last entry, not when you left in 2007.

Also ESTA requires you to answer some questions, including have you been previously removed from the USA. If you answered no, that would be fraud and thus that also brings its own bar for fraud/willful misrepresentation.which is also permanent.

Overview of Fraud and Willful Misrepresentation

​The ​person​ will be barred ​from ​admission for the rest of his or her life​ unless​ ​the person ​qualifies for and is granted a waiver

There are waivers for that however they are hard to qualify for. See a qualified immigration attorney ASAP. What I fear might happen is that last year when you went and were refused based on the 10 year bar, the consular officer was simply kicking the can down the road regarding your unlawful entries on ESTA and that when that ten year bar supposedly runs out and you apply again, you will then get hammered for those entries and they will go into the detailed law for consequences of those entries. They probably didn't want to deal with that complexity now.

REFERENCE

I personally know a person who in 2008 entered the USA unknowingly on an automatically voided visa because they had overstayed by a couple days on a previous visit. Now this person did not even have a bar like in your case, however they got into a world of hurt subsequently with USCIS. Your case is akin to entering on an automatically voided visa PLUS having an existing and in force bar.

Answer 2

No, there are no problems unless you lied on a form or to an officer during those subsequent visits. You should try to check the exact questions you were asked on your ESTA.

Yes, you were "inadmissible" during those subsequent visits so you shouldn't have been admitted. But you were nevertheless admitted, for whatever reason (whether by mistake or their systems didn't catch it or whatever). The reason doesn't matter. There is no ban for being admitted while inadmissible.

Your 10-year INA 212(a)(9)(B)(i)(II) ban continues to run regardless of whether you are in the US or outside the US. INA 212(a)(9)(B)(i)(II) says that if you accrue 1 year of "unlawful presence" and then depart the US, you are inadmissible for admission within 10 years of that departure. After those 10 years, you are no longer inadmissible under that particular ban, no matter where you were during those 10 years.

The lifetime INA 212(a)(9)(C) ban is not relevant to you, because you have never entered, or tried to enter, the US without being admitted. As long as you presented yourself to an immigration officer and they let you in, you were admitted. Even if you had no visa or ESTA or any other documents that allows you to enter the US, if the officer let you in, you are considered to have been admitted. You would have to be doing something like jumping over the border fence, or hiding in the trunk, or something like that where an officer does not see you, to enter without being admitted.