Simply put, a visa is the document that allows you to enter the US legally. Even with a valid one, the border officer has the right to refuse you entry. Now, while your visa validity may continue for several years, the duration of stay allowed to you can expire. When that happens, your presence becomes unlawful. That’s because, according to your student/tourist/work visa allowed you to remain in the US for an authorized period.
Since residents from 20 different countries are now showing an overstaying rate anywhere from 10-41%, Trump administration is now on their case. The Department of Homeland Security found out that as early as three years ago, there were 702,000 overstayers out of the 50 million people who entered the US. The largest proportions hail from Canada and Mexico. The government’s attention turning to this matter means stricter controls could be introduced.
However, there have always been serious consequences when it comes to unlawful presence. For instance, those who overstay may find the government adds up all the time they spent in this state even before a judge declared them unlawfully present. You may also be risking getting permanently banned from the US by overstaying!
This post discusses those consequences of and ways for avoiding overstaying:
Figuring Out How Long You Overstayed
Knowing when your departure is expected makes it less likely that you will commit the visa overstay error. However, visa holders may feel confusing when hunting down the date. That’s because there are various dates on the visa. You should only look at the one on your Form I-94 Arrival/Departure Record. This date might not match that on your visa, but that’s okay. Your visa shows the last occasion that you can use it to enter the US. Therefore, it doesn’t show you when you must leave the US. Count forward from the date given on your I-94 form to find the time allotted to you.
Don’t know which one is the visa and which is the I-94? That’s okay. Your visa is the document that you acquired after your interview at the US consulate. It is printed on your passport. There are different types of visas, and they may allow you either a single visit or multiple entries into the US. Its expiration has nothing to do with the duration of your stay.
The form I-94, on the other hand, states how long you are authorized to stay in the country. You acquire it at a port of entry from the DHS officer there. If you are arriving by air or sea, you get an electronic version of the form.
As an example, consider an Indian national with a form that says their stay is valid from April 1, 2015 to May 31, 2025. Should they arrive in the country on April 5, 2019, their form will state their status expires on October 4, 2019. That is the date that they should consider.
Consequences for Overstaying Your US Visa
Any immigrants overstaying visas risk facing dire consequences, which we discuss below:
Accruing 180 consecutive days of unlawful presence but leaving before the government removes you formally results in a barring for a period of three years. This applies as long as your stay was less than a year.
That brings us to a ban of ten years. Departure before any formal measures are taken against you must apply in this case too.
Accruement of one-year worth of days of unlawful presence – whether continuous or not – and only leaving after being ordered to do so only to subsequently attempt to re-enter without inspection can result in a permanent barring. Always talk to an attorney before taking drastic measures, such as sneaking across the US border! Another reason why you shouldn’t risk a permanent bar is because no waiver can cancel it – in most cases.
Voidance of Visa
Overstaying, as a foreign national, automatically voids your visa. That means you should be prepared for that eventuality even if you overstayed for just one day more! Moreover, readmission will only be possible with a new nonimmigrant visa that you get from your country of nationality.
Inability To Change Status
Some people might be eligible to change their status to avoid the time bars while within the US However, there are many others who cannot do that. For example, people who have entered the US illegally, such as without a visa, aren’t eligible for adjustment. Therefore, even with technically being qualified for a green card, they can only apply for it through a US consulate overseas. That is when the time bars may apply to you.
No Shopping for Consulates
Since you must return to your country if you overstay and obtain a new visa, it means you cannot shop for a consulate that is closest to the US. Moreover, there are countries where the US has no presence. In that case, the Secretary of State designates a country where you may visit and apply for a new visa.
Unlawful Presence Exemptions
The penalty for overstaying visa is strict, sure. But there are individuals who are exempted from it. You could be too, if you fit any of the following profiles:
- Entered the US while not yet 18
- Have an asylum/adjustment/extension/change of status application pending with USCIS
- Received your green card as a farmworker or from the amnesty program in the 1980s
- Were forced to stay as a result of abuse/trafficking while having entered on a nonimmigrant visa
- Are cleared for a stay based on your Temporary Protected Status, Deferred Action, Deferred Enforced Departure, Withholding of Removal under the Convention Against Torture, etc.
Ways to Avoid Overstaying
You can avoid overstaying your visa in the following ways:
Adjust your Status
When you apply for adjustment and don’t want to run afoul of the time bars, you can file for a waiver, the Form I-601A. It demonstrates that your departure can put a US citizen in undue stress and hardship. Moreover, it also proves that there are no other grounds for inadmissibility in your case. You get a provisional or stateside waiver before leaving, so the time bars won’t be tacked on to your visa.
Apply for a Within-US Waiver
This can work if you were barred for 3-10 years. This is a general waiver. A special one, in case you are married to or are the child of someone who is barred for that amount of time admissibility, can also be granted to you. It doesn’t work if it is your child who have been barred. In any case, to get the waiver, you must prove that due to various medical, financial, and educational factors, the US citizen you’re related to will face undue hardship if you departed.
Apply for a US Visa
This works for foreign citizens who have been barred for 3 years. However, you must disclose that during the proceedings or risk a 5-year bar. Apply for a waiver of inadmissibility. But remember to include evidence of extraordinary circumstances being the reason why you applied from a country not your homeland.
Contact Attorney Eric Price Today!
We won’t recommend overstaying and advise consulting a legal expert on these matters instead. To ensure that you remain on the right side of departure date or avoid the repercussions of the overstay, we’d suggest that you contact LA’s best immigration lawyer.