Visa Overstay: What Can Happen and What to Do

There are more than one hundred types of visas in the U.S. With each one of them, you get an availability period, after which you will have to leave the country unless you’ve applied for an extension before that date. If you stay over that expiration date, you will deal with a visa overstay.

But what exactly is a visa overstay, and why is it better to avoid one? Let’s find out!

What Is a Visa Overstay?

A Visa overstay refers to someone who stays in the United States longer than their visa allows them to. In other words, the visa has expired, yet the person hasn’t left the country. On the I-94 Form of every visa, you can see the expiration date. Therefore, by the time it expires, the visa owner is expected to leave the United States.

In some situations, though, not all people are able to leave the country, because unexpected situations occur. That’s when a visa overstay occurs.

How Long Was Your Visa Overstayed?

If you check your Form I-94 Arrival/Departure Record, you will be able to see the date when you’re expected to leave the United State. However, don’t confuse it with the date you have on your visa. The expiration date on your visa and the date shown on the Form I-94 are two different things. The expiration date on your visa is merely showing you the date until you can use the document to enter the United States. As for when you need to leave, you have to look at the number of days remaining until the date on the I-94.

Students who entered the U.S. while in the studying period will have “D/S” mentioned on their Form I-94, most times. This means that your overstay will begin when you stop studying or complying with the terms of the visa. In general, though, students don’t accrue “unlawful presence” unless it is deemed by a judge or immigration official that the student has been unlawfully present in the U.S.

Understanding Unlawful Presence

Unlawful presence is quite hard to define. Basically, you will not accrue unlawful presence for any of the inadmissibility time bars if you are in one of the following situations:

• Having a bona fide pending asylum application on file with USCIS
• Being a battered child or spouse and entering the U.S. on a nonimmigrant visa, and having the means to show evidence of the abuse and visa overstay
• Having been below 18 years old
• Having received protection via Deferred Action, Deferred Enforced Departure, Temporary Protected Status or Withholding of Removal under the Convention Against Torture
• Having an application that is pending currently, for either change of status, an extension of status or adjustment of status (a green card)
• Being a Family Unity program beneficiary
• Having been a trafficking victim and being able to show that your unlawful presence had trafficking as one of the reasons for your stay

If none of these apply to you, then your unlawful presence can be used against you, and you will have to deal with the consequences.

Consequences of a Visa Overstay

If you’re having a visa overstay, then you should be aware that there are consequences that you’ll have to face. Here are the consequences you will deal with due to your visa overstay.

Inadmissibility

One of the most common consequences is inadmissibility. With this, there are two types of inadmissibility that you could face: the three-year bar and the ten-year bar.

The three-year one is for people who stay in the U.S. after their authorization has expired for over 180 days but less than an entire year. It also applies if you leave the U.S. before the removal proceedings. As a consequence, you will not be allowed to enter the U.S. for three years after your departure.

Meanwhile, people who stay in the U.S. after their authorized stay has expired for over a year will fall under the ten-year bar category. If these people also leave the U.S. before the removal proceeding institution, they will not be able to enter the U.S. again for 10 years after their departure.

Bar to Change of Status/Extension of Stay

Another common consequence of the visa overstay is the bar to change of status/extension of stay. Basically, if you stay in the U.S. once your authorized stay period expires, you will not be allowed to change your status to another nonimmigrant status or extend your stay in the country. You might also be barred from adjusting your status from nonimmigrant to immigrant.

In order to get a status adjustment/change or stay extension, you will have to file for them before the authorized stay expires. By doing that, you will be considered to be maintaining status until a decision is made. It applies even if the decision is made after the expiration of the date on the I-94.

Visa Voidance

If you overstay, then your visa will be automatically voided. Even if you overstay for a single day, your visa will be voided, particularly because immigration is usually very strict when it comes to its interpretation and application of this provision. You cannot be readmitted. However, if you get a new nonimmigrant visa in your native country, you might be readmitted.

No Consulate Shopping

In case you’ve overstayed your visa, then you must return to your country of nationality to get your new visa. But you will not be allowed to use the more convenient option – the consulate – to apply. At the same time, if your country doesn’t have any consulate that issues visas, then the Secretary of State will designate a third country to allow you to apply for a visa.

Exceptions

You need to be aware of the exception to this rule, though. In the case of some extraordinary circumstances, you will get permission to apply for a visa at a Consulate in a third country. To be more specific, this will be a different country than the country of nationality.

Using a Waiver to Avoid Being Penalized

In some cases, you can avoid being penalized by using a waiver. Here’s what you need to know:

Eligibility for Waivers

Eligibility for waivers is only obtained in a specific situation. Basically, you will have to prove that if you don’t overstay your visa, your parents or spouse will go through hardship. The waiver will help you avoid the inadmissibility scenario.

For Immigrants

If you’re an immigrant, you will be eligible for a specific waiver. If you’re the spouse, daughter or son of a permanent resident or citizen of the U.S., then you will be eligible for a waiver for the three or ten-year bar. It is important to bear in mind that the waiver is not available for those foreign nationals who only have children who are citizens or permanent residents of the U.S.

Obtaining the waiver can happen if you are able to show that your parents or spouse who are U.S. citizens or permanent residents will deal with hardship if you don’t return.

For Non-Immigrants

As a non-immigrant, you will not be eligible for a waiver for the three or ten-year bar. Luckily, though, you can still apply for a general waiver for most other inadmissibility grounds.

Read More

• What is Visa Sponsorship?
• How to Write a Visa Invitation Letter
• Can I Sponsor an Immigrant that is a Non-Family Member?
• Affidavit of Support Samples
• What Are My Options for Change of Status Visa Stamping If I Am Already in America?
• OFC Appointment: What You Should Know About It?

Conclusion

A visa overstay will have bad influences on your ability to return to the United States in the future, especially if you didn’t have valid reasons for your unlawful presence. To avoid this, you must keep an eye on the expiration date and apply for an extension in advance.

Frank Gogol

I’m a firm believer that information is the key to financial freedom. On the Stilt Blog, I write about the complex topics — like finance, immigration, and technology — to help immigrants make the most of their lives in the U.S. Our content and brand have been featured in Forbes, TechCrunch, VentureBeat, and more.

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