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US Overstayed Visa
It is common for foreign nationals that have entered the US to overstay the time their visa allows. If this has happened to you, there are a few consequences/penalties depending on the circumstances. You may also be eligible for a waiver but you will need to speak with an immigration professional.
What Is a US Visa Overstay?
A visa overstay is when you stay in the United States longer than your visa is allowed. All visas have expiration dates indicated on the I-94 Form, and you are expected to have left the US by the time yours is set to expire. However, sometimes things happen and you are not able to leave the country when you should.
Steps to Take If You Have Overstayed Your Visa
When an individual overstays their US visa, there are a few very important steps to take:
- Contact an immigration lawyer
- Determine eligibility for a waiver
- Stay on the right side of the law
- Be patient
While there is no guarantee you will be able to avoid or mitigate the penalties of overstaying your visa, taking these steps may improve your chances.
4 Main Consequences of Overstaying a US Visa
Consequence #1: Inadmissibility
The Three Year Bar: Persons who remain in the US after their authorized stay has expired for more than 180 days but less than one year, and who leave the US 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 US after their authorized stay has expired for more than one year, and who leave the US prior to the institution of removal proceedings, are barred from reentering the US for ten years from their date of departure.
Consequence #2: Bar to Change or Extension of Status/Extension of Stay
Persons who remain in the US after their authorized period of stay are not able to extend their stay in the US 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 file for an Extension of Stay, Extension of Status, 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.
Consequence #3: Visa Voidance
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.
Consequence #4: No Consulate Shopping
The law provides that any foreign national who has stayed beyond his period of authorized stay in the US 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 US 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.
What Is a US Visa Waiver and How Can I Get One?
Applying for visa overstay forgiveness, you may be eligible for a waiver, which would mean you could avoid the three or ten-year bar. While it is difficult to obtain, certain immigrants may be eligible if they fit a particular set of criteria.
Waiver for Nonimmigrants
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.
Waiver for Immigrants
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.
What Happens If You Overstay Your Visa Due To COVID?
If you have overstayed your visa in the United States due to COVID-related closures or test results you will need to appeal and your overstay will be assessed. USCIS officials stated that each case will be reviewed individually keeping in mind how long your overstay was. It is suggested that tourists apply for an extension which could extend their stay up to an extra 6 months from the date of expiration. In normal times the agency recommends applying 45 days before the authorized stay expires. Because of the pandemic, some tourists did not have enough time to apply.
How To Avoid A Visa Overstay
There are two main things a visa holder in the United States can do to ensure they do not overstay their visa and thats to:
- physically leave before your visa expiration date, or
- make a substantial travel plan for when you leave so you are not to miss it
How Does the USCIS Know I Overstayed My Visa?
Although the United States does not track everyone's departure date, they have the records of when you're suppose to leave. it is your duty to leave before this expiration date and if you are caught overstaying your visa, you will face serious consequences. The USCIS will usually be able to tell through airline arrival/departures database.
Valid Reasons for Overstaying Visa
You may be given an exception for your overstayed US visa if:
- You have a pending asylum application
- You are a child or spouse and entering the US on a nonimmigrant visa, and having the means to show evidence of the abuse and visa overstay
- Under the age of 18 years old
- You have received protection via Deferred Action, Deferred Enforced Departure, Temporary Protected Status or Withholding of Removal under the Convention Against Torture
- You have an application that is pending currently, for either change of status, an extension of status or adjustment of status (a green card)
- You are a Family Unity program beneficiary
- You have been a trafficking victim and being able to show that your unlawful presence had trafficking as one of the reasons for your stay
Leaving the US After Overstaying Your Visa
If you have overstayed your stay for less than 180 days, you will not trigger any bars to re-entry. Although when/if you try to re-enter the United States the border officer will be able to see that you overstayed your permitted time on your previous stay and could deny entry. In this case, it's good to be ready with an explanation of what happened.
Have You Overstayed Your US Visa?
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!