Upon entry to the U.S. with a temporary visa, you receive an Arrival-Departure Record Card (Form I-94), on which an immigration inspector notes the length of time you are allowed to stay. If you remain in the U.S. past that date, you have overstayed your visa.
Staying past the period that you are authorized to stay can incur some serious penalties. For example, your visa can be voided and you cannot then apply for another visa to enter the United States. You may also be banned for a period of time from re-entering the United States depending on the period of time you 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 if they:
- Are under the age of 18
- Had a good faith pending application for asylum on file with the USCIS
- Were a beneficiary for a recognized Family Unity Program
- Had a pending application for a Adjustment of Status, change of status, extension such as a green card
- Were a victim of abuse or a abused spouse who can show evidence that returning to their home country would be a risk and/or danger
- Were a victim of human trafficking in your home country and can show evidence that the overstay was a primary reason of the trafficking
- Had obtained a Deferred Enforced Departure, Deferred Action, Withholding of Removal, or a Temporary Protection Status
If you reside in the U.S. for longer than authorized, you are overstaying your visa and also violating your status. However, it is possible to be out-of-status without overstaying your visa. For example, if you are holding a F-1 student visa and working without authorization, you are out-of-status and no longer receive any visa benefits.
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, you generally face many legal obstacles.
Numerous penalties arise when you overstay your visa. Problems associated with such an abuse include:
- Your current visa stamp becomes void;
- The U.S. Department of Homeland Security may declare you unlawfully present; and
- Serious difficulties may develop if you attempt to obtain a U.S. visa in the future.
- Overstays may bar a person from returning to the U.S for 3-10 years depending on the period of overstay
- Overstays may prevent further extensions of Stay or Change of Status
- Overstays would be prohibited from obtaining a new visa
Three-Year Ban: Individuals who overstay in the U.S. after their authorized period has expired for a period of more than 180 days, but less than one year and leave the US 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: Individuals who overstay in the U.S. after their authorized period has expired for a period of more than one year and leave the US prior to removal proceedings are barred from entering the United States for a period of ten years from the date of their departure.
The three year or ten year ban does, however, allow nonimmigrants to apply for a general waiver of the grounds for inadmissibility and the ban would not apply if the waiver is accepted.
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.