Overstayed in Germany by a day, applying to work at US university

Question

I am an Australian citizen who entered Germany in 2019 on a 3-month tourist visa, and I ended up overstaying by one day (accidentally by miscalculation).

I was taken to the police station within the airport and signed made to sign a few forms. I was given the forms but later threw them away, when moving house (they were bad reminders of a stressful time - I know this wasn't smart).

I don't really remember what the forms said. I think Form 1 was along the lines of "do you understand why you are being detained?" I think Forms 2 was along the lines of "do you give permission to share data". And Form 3 was along the lines of "you admit to an offense".

I asked what the consequences of this were and the officer said "no consequences" and then I was allowed to board my flight.

Flash forward to 2022 and I'm now being hired at a US university, and they want to know about any previous crimes and also this will involve a visa. I want to know three things:

1. Did I commit a crime (I suppose a misdemeanour?)
2. If so, what was the exact crime, and what would have those forms been?
3. Should I inform my employer about this incident (am I required to), and should I note it on the visa forms?

Answer 1

Your decision on how to proceed here (reveal or not reveal what happened in Germany) carries significant risk. If you do not reveal what happened in Germany, and whoever’s looking at your denial discovers that you’ve not been truthful, you risk having your employment offer rescinded and your visa application denied.

The prospective employer might not care enough to investigate a “no” answer. Even if they did investigate, their access to past immigration records of another country might be spotty or non-existent. The chances of being caught out here are unknown. But if you were caught out, you'd be seen to have lied on your application, which is unlikely to go over well.

You also need a US visa for this job. This increases the stakes substantially, as the US State Department visa examiner will look at both the substance of what you say in your application, as well any conflicts or differences between what you say in the application and what’s shown on other governmental records available to the examiner.

The visa examiner has significantly greater and easer investigative reach than the university. The US is party to significant international immigration information-sharing through the Five Eyes agreements. Australia is a member too. It’s reasonable to assume that the US State Department visa examiner will want to know whatever Australia knows about you. It’s also possible that Germany, knowing your name and passport number, reported its actions to the Australian Passport Office, of the Department of Foreign Affairs and Trade.

If the Passport Office reports a German violation to the US State Department, and your visa application omits mentioning the issue, then you’ll be caught lying on your visa application. Your application will be denied.

On the other hand, if you answer truthfully, you will have a better chance that the violation will be seen as inconsequential, and ignored. Your overstay was short and the result of miscalculation, an inadvertence. You were not fined. People (including those who travel) err. This should not be seen by anyone as a serious and disqualifying misstep.

Thus, the consistent advice given on this site: answer all the questions truthfully. You don’t have to answer questions not asked, but explain as necessary. Your statements should be clear, concise, and without emotion.

Answer 2

I would like to follow up and pose an answer to my question.

The first thing I would recommend anyone in similar circumstances doing is taking a deep breath, taking a step back, and getting proper legal advice.

Find out how much time you have to respond to the authority that is inquiring, and use that time to collect as much information as possible. The first place to go is to an actual lawyer specialising in immigration law. This is because they can direct you about who else you should contact and in what way. For instance, in my case, I ended up contacting the relevant German police as well. But in hindsight, I might have waited for legal advice on this also. Maybe not all police services are as helpful and you're certainly helping them find you, by contacting them.

It turns out that the German federal police did not have any documents pertaining to the incident. That is likely because I was held only for questioning, as well as this occurred two years ago (so the documents no longer exist). They said in general overstaying by a day does not result in a criminal record. My lawyer added that because my fingerprints were not taken, and there was no penalty, I also did not likely commit a crime.

My lawyer's advice was that I answer 'no' to the question asked by my future employer ('have you committed a crime?') In the US visa application, it asks a similar question, to which my answer should also be 'no'. There is a question about overstaying in the visa application, but it relates to overstaying in the US, so my answer should be 'no' to that as well.

On the whole, I'm glad I waited for proper legal advice, because if I had moved forward and assumed I had committed a small crime, I would have likely slowed down the process and just caused unnecessary issues. That's not to say you should not be honest on these forms, but you should find out what being honest in your case entails.

Thanks DavidSupportsMonica and Mark Johnson for their interest in my question.