Overstaying your authorized stay in the U.S. can have serious consequences. However, the consequences vary depending on how long you overstay visa and under what type of visa you overstay.
Most foreign nationals who apply for admission at a port of entry pursuant to a nonimmigrant visa or under the Visa Waiver Program, is admitted for a defined period of time. Once the foreign national remains in the U.S. beyond their authorized period of stay, he or she has “overstayed.”
An automated entry/departure system, coupled with the use of machine readable Passport means that most entries and departures are recorded and maintained by US immigration authorities (USCIS, CBP and ICE).
1. Consequences Of Overstaying Your Authorized Stay
Some of the most common consequences of overstaying a visa in USA are:
- Being barred from returning to the US for three or ten years if the overstay involves accrual of unlawful presence
- Being restricted from Extension of Stay or Change of Status
- Voiding your existing visa
- Being unable to obtain a new visa except in their country of nationality
- Being unable to Adjust Status in the U.S.
Let’s take a look a closer look at some of these consequences.
DID YOU KNOW?
Foreign nationals who enter the U.S. in F-1, J-1 or M-1 status are admitted to the U.S. for “Duration of Status” or D/S. This means they remain in status as long as they have a valid SEVIS document (I-20 or DS-2019). Unless they change status to another type of nonimmigrant status, these nonimmigrants do not “overstay” and do not accrue unlawful presence unless a determination is made by USCIS or an immigration judge.
2. Inadmissibility Due To Visa Overstay
When a foreign national overstays their authorized period of stay, determined by the I-94 record issued by CBP or the status expiration as determined by USCIS after an extension or change of status, that individual begins to accrue “unlawful presence.”
- Three-Year Bar: Persons who are unlawfully present for more than 180 days but less than one year, and who leave the US prior to the start of any removal proceedings, are barred from reentering the US for three years from their date of departure.
- Ten-Year Bar: Persons who are unlawfully present for more than 1 year, and who leave the US prior to the start of any removal proceedings, are barred from reentering the US for ten years from their date of departure.
DID YOU KNOW?
There are waivers available to the 3 and 10 year bars.
For Nonimmigrant Visa Applicants: A nonimmigrant waiver application can be submitted along with a nonimmigrant visa application. There is no specific form. The waiver must be approved by both the Dept. of State and Dept. of Homeland Security (USCIS).
For Immigrant Visa Applicants: To obtain the waiver, the foreign national must show that their US citizen or permanent resident spouse or parents will suffer ‘extreme hardship’ if the foreign national is not allowed to return to the US. ‘Extreme hardship’ to the foreign national himself is not recognized for the purposes of the waiver.
3. Bar As A Consequence Of Overstaying Visa In US
Foreign nationals who remain in the US after their authorized period of stay are generally 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.
NOTE: If the foreign national files a timely Extension of Stay, Change of Status or Adjustment of Status before the period of authorized stay expires, the foreign national will be in a period of “authorized stay” even after the I-94 expires, until the application is adjudicated. If the application is denied, unlawful presence does not accrue until the date of the decision.
4. Visa Cancellation As A Consequence Of Overstaying
The visa of any foreign national that overstays their authorized period of stay is automatically revoked or voided. Overstaying by even one 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 home country.
NOTE: Those who enter on Visa Waiver and overstay, even by one day, cannot use Visa Waiver for any subsequent trip to the U.S. They must obtain a B-1/B-2 visa to visit the U.S. in the future.
5. No Consulate Shopping As A Consequence Of Overstaying
Foreign nationals who overstay their authorized period of stay are required to obtain any future visa from their home country or country of residence. If there is no U.S. Consulate in the home country, 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 the home country. 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.
6. How Do You Maintain Status And Avoid Overstaying?
Be Aware Of Your I-94 Expiration Date
All entrants to the U.S. who enter by land, air or sea are issued I-94 Entry/Departure Records. Those entering by land are given paper I-94 records and those entering by sea or air have their information recorded electronically. This information can be obtained by going to I-94. It is the foreign national’s responsibility to be aware of the I-94 expiration date.
You must leave the US on or before the expiry of the authorized period of stay granted at admission or with any subsequent Extension of Stay or Change of Status, unless you file a timely, non-frivolous application for Extension of Stay, Change of Status or Adjustment of Status.
Make Sure To Document Your Departure
Departures from the U.S. are now recorded electronically and are also pulled from flight itineraries. It is a good idea to make sure you have proof of your departure from the U.S. in case CBP does not have correct information regarding your departure. Get your passport stamped when you enter another country, save your airline tickets and/or boarding pass, save your travel itinerary etc.
The consequences of being found to have stayed beyond your period of authorized stay in the US are numerous and harsh, from having to get a new visa to return, to facing a three- or ten-year bar from reentering the country. It is just not worth the risk to get in that extra day of vacation.
VisaPro immigration attorneys have been helping foreign nationals that have met unforeseen circumstances and had overstayed in the U.S. If you are seeking advice on US visa overstay, or need a waiver Schedule A Consultation With Immigration Lawyer Today >>
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