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It is common for foreign nationals that have entered the U.S. to overstay the time allotted according to their visa restrictions. If this has happened to you, there are a few consequences/penalties, depending on the circumstances.
It is essential to deal with this situation without delay, as you might have options.
The Three Year Bar: Persons who remain in the U.S. after their authorized stay has expired for more than 180 days but less than one year, and who leave the U.S. prior to the institution of removal proceedings, are barred from reentering the US for three years from their date of departure.
The Ten Year Bar: Persons who remain in the U.S. after their authorized stay has expired for more than one year, and who leave the U.S. prior to the institution of removal proceedings, are barred from reentering the U.S. for ten years from their date of departure.
Persons who remain in the U.S. after their authorized period of stay are not able to extend their stay in the U.S. or change their status to another nonimmigrant status. In most cases they are also barred from adjusting their status from that of a nonimmigrant to that of an immigrant.
However, the USCIS stated that as long as a foreign national files for an Extension of Stay or Change of Status or Adjustment of Status before the period of authorized stay expires, the foreign national will be considered to be maintaining status until a decision is made on the application or petition, even if the decision is after the date on the I-94 expires.
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. A foreign national who has overstayed a visa may not be readmitted unless they have obtained a new nonimmigrant visa in their country of nationality.
The law provides that any foreign national who has stayed beyond his period of authorized stay in the U.S. must return to his country of nationality to obtain a new visa. You may no longer apply at a consulate that is ‘more convenient’ or closer to the U.S. If there is no consulate in your home country of nationality which issues visas, the Secretary of State may designate a third country where those individuals can apply for a new visa.
There is a narrow exception to this rule. If the foreign national can show that ‘extraordinary circumstances’ exist, they may be allowed to apply for a visa at a Consulate in a third country, i.e., a country that is not their country of nationality. Any person wanting to take advantage of this exception must receive the consent of the third country Consulate before making an appointment and submitting a nonimmigrant visa application.
If you have overstayed your visa, you may be eligible for a waiver, which would mean you could avoid the three or ten year bar.
While a nonimmigrant is not eligible to apply for a waiver for the three or ten year bar, an individual would still be able to apply for a general waiver for most grounds of inadmissibility.
The statute does provide a specific waiver for the three or ten year bar for foreign nationals who are the spouse, or son or daughter of a U.S. citizen or permanent resident. The waiver is not available to foreign nationals who only have children who are U.S. citizens or permanent residents.
To obtain the waiver, the foreign national must show that their U.S. citizen or permanent resident spouse or parents will suffer ‘extreme hardship’ if the foreign national is not allowed to return to the U.S. ‘Extreme hardship’ to the foreign national himself is not recognized for the purposes of the waiver.
Overstaying a visa can have serious repercussions, which can be mitigated with legal help. Without the assistance of a legal expert, an individual with an expired visa can face consequences that may have been avoidable.
Time is of the essence, and the process for attaining a waiver is crucial. Don’t hesitate to get the legal help you need.
While it may be tempting to just do nothing if you are an overstay in the U.S., this is not recommended. A life of “looking over your shoulder” is not a secure way to live.
For overstay cases, there is a high risk you can be caught by the U.S. Immigration Authorities and deported. But if you consult with an experience lawyer that handles these matters, there may be viable options for you
Our lawyers belonging to the VisaPlace Group have helped many applicants get admitted to the United States and have resolved their overstay problems. Contact us for a consultation to discuss your options or fill out our immigration assessment form located at the top of this page, and we will get back to you within one business day!
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