Approximately 40% of the individuals who are in the United States illegally are a result of overstaying their tourist or student visas. If an individual overstays their visa and is now in the United States illegally, it may have a negative effect on any future visa applications. However, some individuals who have overstayed their visas may be allowed to review them and remain in the United States legally.
When an individual enters the United States with a temporary visa, they receive an Arrival-Departure Record Card, or Form I-94, on which an immigration inspector notes the length of time they are allowed to stay.
If the individual remains in the United States past that date, they have overstayed their visa. Currently, overstaying a visa is not a crime.
According to visa overstay laws, if an individual stays past the period they were authorized to stay, they can incur some serious penalties. For example, their visa may be voided and they will be prohibited from applying for another visa to enter the United States. Depending on the amount of time they overstayed, they may also be banned from re-entering the United States.
The overstay must be an unlawful presence by the individual. An individual would not be overstaying their visa for the purposes of a 3 year or 10 year ban if they:
- Are under the age of 18;
- Have a good faith pending application for asylum on file with the United States Citizenship and Immigration Services (USCIS);
- Were a beneficiary for a recognized Family Unity Program;
- Had a pending application for an Adjustment of Status, change of status, or extension such as a green card;
- Were a victim of abuse or an abused spouse who can show evidence that returning to their home country would be a risk and dangerous;
- Were a victim of human trafficking in their home country and can show evidence that the overstay was a result of of the trafficking; or
- Had obtained one of the following:
- A Deferred Enforced Departure;
- A Deferred Action;
- A Withholding of Removal; or
- A Temporary Protection Status.
A visa overstay may also occur when an individual with a temporary visa fails to depart the United States or fails to renew their visa after it has expired. This situation may lead to serious legal consequences for the visa holder. In some cases, a visa overstay is accidental, such as when the individual fails to remember the expiration deadline. In other cases, the visa overstay is intentional.
Is Overstaying the Same as Being Out-of-Status?
If an individual resides in the United States for a longer period of time than they were authorized, they are overstaying their visa and violating their status. It is important to note that it is possible to be out-of-status without overstaying a visa. For example, if an individual is holding a F-1 student visa and working without authorization, they are out-of-status and no longer receive any visa benefits.
Can I Renew my Visa after Overstaying?
In certain situations, it may be possible for an individual to stay legally in the United States after overstaying their visa if they act within a given grace period. However, when an individual overstays their visa and their status is violated, they typically face many legal obstacles.
What are the Consequences of Overstaying a Visa?
There are numerous penalties that an individual may face when they overstay their visa. Issues that may arise as a result of overstaying a visa include:
- Their current visa stamp becomes void;
- The United States Department of Homeland Security may declare them unlawfully present;
- Serious difficulties may develop if the individual attempts to obtain a United States visa in the future;
- Overstays may bar an individual from returning to the United States for 3 to 10 years, depending on the period of overstay;
- An overstay may prevent further extensions of Stay or Change of Status; and
- An overstay may cause an individual to be prohibited from obtaining a new visa.
Individuals who overstay their visa in the United States after their authorization period has expired for more than 180 days but less than one year and leave the United States before removal proceedings are barred from entering the United States. This bar lasts for a period of 3 years after the date of their departure. Individuals who overstay their visa after their authorization period has expired for a period of one year or more and who leave the United States prior to their removal proceedings are barred from entering the United States for a period of 10 years from the date of their departure.
The 3 year or 10 year ban allows nonimmigrants to apply for a general waiver of the grounds for inadmissibility. The ban would not apply if the waiver is accepted.
Other legal consequences of overstaying a visa may include:
- The loss of current immigration status and privileges;
- The loss of opportunity to file for permanent resident status;
- Negative effects on chances for obtaining United States Citizenship; and
- In serious cases, or cases that involve criminal activity, removal or deportation may occur.
Individuals who have overstayed their visa may be barred from applying for a visa overstay adjustment of status. However, an immediate relative who has overstayed their visa may be able to apply for permanent residence, or a green card, from within the United States.
Are there any Defenses to Overstaying a Visa?
There are very few defenses that may be available to an individual who has overstayed their visa. However, there may be other options, such as waivers, an individual may pursue to remain legally in the United States.
Even if the individual has only stayed one day past the date on their visa, if they did not file for an extension prior to that date, their visa will be automatically voided and cancelled. In addition, they will not be able to apply for a new visa at any consulate outside of their home country.
If the individual filed for a change or extension of status prior to their departure date and it is eventually granted, the overstay will not count against them. However, if the request is denied, the departure date that has passed will be counted against them.
How can Overstaying a Visa be Avoided?
An individual can avoid overstaying a visa by using careful planning and foresight. Tips for avoiding a visa overstay include:
- Always double checking their expiration dates, passport deadlines, and any other relevant deadlines;
- Planning and budgeting ahead of time, as failing to make preparations can cause delays in travel or communication; and
- Keeping abreast of immigration laws and policies, as these can change frequently, even yearly.
Do I Need an Immigration Lawyer for Help with Visa Overstay Issues?
Yes, it is essential to have the assistance of an immigration lawyer with any overstay issues you may have. One way you can avoid any issues relating to a visa overstay is to evaluate your options prior to a violation occurring. Your lawyer can advise you of the steps required to remain in the U.S. legally. If you have already overstayed your visa, there are alternatives you may consider.
Overstaying a visa may create a complicated dilemma for the visa holder and other individuals. Your attorney can help you with any matter related to your immigration status or visa. If you are required to appear in immigration court, your lawyer can represent you.