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What Happens if I Overstay My Visa?

A U.S. visa allows a foreign national to enter the United States. It indicates that a U.S. consular officer reviewed your application at a U.S. consulate or U.S. embassy in your home country. The visa is proof of your eligibility to enter the U.S. for a particular purpose. However, each U.S. visa has both a validity date and an expiration date. The length you are allowed to stay in the United States is often based on these dates.

This article gives an overview of what happens if you stay in the United States beyond the time allowed.

The Visa Expiration Date

The Visa expiration date is the date shown along with the visa issuance date. You can travel in and out of the United States during this timeframe. The U.S. visa can either be a single entry or multiple entry.

A single-entry visa is valid from the date of issuance to expiration, but you can only travel to a U.S. port of entry once. In most cases, you would need a new visa if you plan on traveling to the U.S. again.

On the other hand, with a multiple entry visa, you can enter the U.S. port of entry multiple times provided that your visa has not expired and you haven't exceeded the amount of time allowed as stated in your visa.

It is important to remember that a U.S. visa does not guarantee entry into the United States. The visa validity does not reflect how long can a visa holder stay in the country. The authorized period of stay depends on the date stamped or determined by the U.S. Customs and Border Protection (CBP) at the port of entry.

Admission in the U.S. and Duration of Stay

As mentioned, the CBP officer will determine how long you can stay in the country. The admission stamp of Form I-94 will contain a specific date by which you can stay in the United States. If you have “D/S" in your admission stamp of Form I-94, this applies to student visas or employment visas and the like. With this type of visa, you can stay as long as you continue your course of employment, studies, or exchange program.

Understanding Days of Unlawful Presence and Tolling

When you enter the United States at a port of entry, a U.S. Department of Homeland Security (DHS) officer decides whether you can enter the country. They will evaluate your immigration status and decide how long you can stay.

However, it's important to be aware of tolling. Certain factors in the case can pause the time you are unlawfully present in the country. The accrual of overstay time may toll if the foreign national:

  • Has been lawfully admitted or paroled into the United States
  • Was under the age of 18 during the unlawful presence
  • Has a non-frivolous pending asylum application on file with USCIS
  • Is a victim of trafficking and is unlawfully present due to the trafficking
  • Is a beneficiary of a family unity program
  • Has a pending application for either an adjustment, an extension, or a change of status
  • Had a non-immigrant visa and is a battered spouse or child who can show a connection between the abuse and the overstay

If a reason for tolling no longer exists, the foreign national's unlawful presence will continue to accrue. While there are ways for the individual to extend or even change a visa to prevent overstaying, there are severe penalties for those who overstay and refuse to depart, according to a USCIS ruling.

The 3-Year Bar: Unlawful Presence Ground for Inadmissibility

If you are a foreign national and do not have a lawful permanent resident status, you are inadmissible to stay in the United States if:

  • You accumulated over 180 days but less than one year of unlawful stay in the United States during a single visit on or after April 1, 1997
  • You voluntarily left the U.S. before the Department of Homeland Security (DHS) started expired removal proceedings
  • You asked for re-entry to the country within three years from your departure after accruing unlawful presence

The three-year bar starts when you leave the United States.

The 10-Year Bar: Unlawful Presence Ground for Inadmissibility

If you are a foreign national who does not have an LPR status, you are inadmissible to stay in the United States if:

  • You accumulated one or more years of unlawful presence during one stay in the country or after April 1, 1997
  • You left the U.S. or were removed from the country under any provisions of the law
  • You asked for re-entry within ten years from your departure or removal after you accumulated unlawful presence

The 10-year bar as a ground for inadmissibility of entering the U.S. applies in cases wherein you left during, before, or after the DHS started the removal proceedings.

Consequences of Overstaying a Visa

Unlawful presence is the period of time you are in the U.S. without proper admission or authorization. Often, this occurs if you committed one or more grounds for inadmissibility or fail to file for an extension of status. Unlawful presence could cause serious consequences. Particularly if you are looking at an adjustment of status or green card application.

If you committed one or more grounds for inadmissibility, the U.S. Department of State would not allow you to obtain a U.S. visa to enter the country. You are also prohibited from acquiring immigration benefits such as adjustment of status to that of a green card holder without first acquiring a waiver or other form of relief.

The following are some of the forms of relief or waiver that you can apply for. The forms can be found on the U.S. Citizenship and Immigration Services (USCIS) website:

  • Application for Waiver of Grounds of Inadmissibility (Form I-601)
  • Application for Advance Permission to Enter as Nonimmigrant (Form I-192)
  • Application for Provisional Unlawful Presence Waiver (Form I-601A)
  • Application for Permission to Reapply for Admission to enter into the U.S. After Deportation or Removal (Form I-212)

Extending or Changing Visas

An easy way to avoid the consequences of visa overstay is to extend a nonimmigrant visa before it expires. You can mail a request to extend nonimmigrant status to the USCIS or submit it through the USCIS website. The foreign national may apply for an extension of stay in the United States if they:

  • Was lawfully admitted into the United States as a nonimmigrant
  • Has not committed any act that makes them ineligible to receive an immigration benefit, such as a felony conviction
  • Is not required to depart the United States before extending status
  • Applies for an extension of stay before the expiration date on their Form I-94 departure date

If the foreign national's I-94 has a nonimmigrant category of C, D, K-1, K-2, S, TWOV, WT, or WB, these types of visas cannot be extended, and they must depart on or before the date on the I-94 expires.

Another way to avoid overstaying a valid visa is to change your visa status completely. Like an extension of a visa, a visa status change must be requested through the necessary forms with the USCIS before the individual's authorized stay expires.

Seek Legal Advice From an Immigration Attorney

Navigating the complex rules of U.S. immigration laws can be challenging and overwhelming. This particularly applies to those going through consular processing and processing their travel document. In this case, it is crucial to hire an experienced immigration attorney.

An immigration lawyer can assist you and your family in handling immigration matters. They can help you understand immigration laws and the processes that apply to your case. They can also provide you with updates about your visa status application.

In some cases, an immigration attorney can also assess if you are eligible for visa overstay forgiveness or other types of waiver of inadmissibility. Learn more about the United States border entry rules and visas on FindLaw.

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