Upon entry to the U.S. with a temporary visa, a person receives an Arrival-Departure Record Card (Form I-94), on which an immigration inspector notes the length of time the person is allowed to stay. The date on which the visa expires is shown on the card. If a person remains in the U.S. past that date, the person has overstayed their visa.
A person who stays past the period authorized for their stay can incur serious penalties. For example, the person’s visa can be voided. They then cannot apply for another visa to enter the United States. They may also be banned for a period of time from re-entering the United States depending on the period of time that they overstayed.
The overstay must also be an unlawful presence. A person would not be overstaying their visa for purposes of a three-year or ten-year ban only 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);
- Are the beneficiary of a recognized Family Unity Program, which is designed to prevent foreigners and their from being separated;
- Have a pending application for Adjustment of Status or Extension, such as an application for a green card;
- Have been an abused child or an abused spouse which resulted in the overstay;
- Have been a victim of human trafficking in their home country and could show evidence that the trafficking was the primary reason for the overstay;
- Have been the recipient of protection through Deferred Enforced Departure, Deferred Action for Childhood Arrivals, Withholding of Removal, or Temporary Protected Status.
Fulfilling any of these conditions can result in a pause of a person’s accumulation of overstay time. However, as soon as these conditions no longer apply to a person’s status, their overstay time starts to accumulate again, potentially leading to the negative consequences of overstaying a visa.
The best way to avoid penalties is to avoid overstaying a visa and becoming unlawfully present in the U.S. Before a person’s visa expires, the person should seek to extend the visa or change their status by filing the appropriate forms with the USCIS. Or, if the person has no basis for remaining, the person can return to the nation in which they have citizenship.
Keep in mind, not all visa types can be extended. Forms to extend the visa or change a person’s status must be filed before a person’s existing visa expires. A person must be considered in good standing,i.e. not convicted of a felony and legally admitted to the country as a nonimmigrant, to be eligible to change their visa status. A person is most likely to have a positive outcome in any dealing with the USCIS if the person remains in compliance with all applicable laws.
Is Overstaying the Same as Being Out-of-Status?
If a person stays in the U.S. for longer than authorized by their visa, the person is overstaying their visa and also violating their status. However, it is possible for a person to be out-of-status without overstaying their visa. For example, if a person has an F-1 student visa and works without authorization, the person is out-of-status.
A person can be out of status and still be legally present in the U.S. or not have overstayed their visa. However, remaining in the U.S. past the date when a person’s visa expires also places the person out of status.
Can I Renew My Visa after Overstaying?
In some situations, it is possible to stay legally in the U.S. by acting within a given grace period. However, when overstaying occurs and status is violated, a person generally faces many legal obstacles to remaining legally in the U.S. That is why it is advisable to act before the expiration of any visa.
What Are the Consequences of Overstaying
There are numerous negative consequences to overstaying a visa. Problems associated with overstaying a visa include:
- A person’s current visa stamp becomes void and the visa may be revoked or cancelled;
- The U.S. Department of Homeland Security may declare the person unlawfully present;
- A person who has overstayed their visa may be barred from returning to the U.S for 3 to 10 years depending on the length of time they overstayed their visa;
- Overstaying a visa may preclude further extensions of a stay or changes of status;
- A person who has overstayed their visa can be prohibited from obtaining a new visa except from the country of which they are a citizen, i.e., not in the U.S.
Three-Year Ban: People who remain in the U.S. after the stay authorized by their visa has expired for a period of more than 180 days, but less than one year and leave the U.S. prior to removal proceedings are barred from entering the United States for a period of three years from the date of their departure.
Ten-Year Ban: People who remain in the U.S. after the stay authorized by their visa has expired for a period of more than one year and leave the U.S. prior to removal proceedings are barred from entering the U.S. for a period of ten years from the date of their departure.
The three-year and ten-year bans, however, allow nonimmigrants to apply for a general waiver of the grounds for inadmissibility. The ban would not apply if the waiver is accepted. Generally, a waiver is granted only upon a showing that the ban would cause extreme hardship to a spouse or other member of the applicant’s nuclear family.
If the U.S. government becomes aware that a person is unlawfully present in the country because their visa has expired, the person may receive a Final Order of Removal. This order requires the person to leave the country within 90 days of the issuance of the order. Failing to comply with the order can lead to further consequences, such as the imposition of a fine and up to 4 years in prison.
If a person should receive a Final Order of Removal, they should make preparations to leave the country within 90 days of the date the order is issued. The person should present themselves at the time and place specified by the U.S. Attorney General.
A person who is under an Order of Removal should not do anything to prevent or delay their departure from the U.S. Additionally, some conditions warrant even greater penalties than those that apply in the event of overstaying a visa.
If the Order of Removal results from criminal offenses, including the falsification of records, smuggling, or those relating to national security, a person could face up to 10 years in prison. It is also important to understand that a person can incur civil penalties (as opposed to criminal penalties) because of removal violations. Specifically a person can be fined as much as $2,000 for each violation.
Do I Need an Immigration Lawyer?
One way to avoid problems relating to a visa overstay is to evaluate your options before the violation occurs. An immigration lawyer can discuss with you the steps required to remain in the U.S. legally, and if you have overstayed your visa, the alternatives you may consider.
You are most likely to experience the best possible outcome if you consult with an experienced immigration lawyer before your visa expires.