Learn more about immigration law by reading through our immigration law FAQs below. Contact one of our experienced immigration lawyers for help with your questions.
What is a U.S. visa overstay?
If an individual stays in the U.S. longer than the visa allowed them to stay, that is considered an overstay. This can be overstaying once you reach the expiration date or if you no longer fall under one of the categories for the “duration of status” admission. Once the program or activity ends that granted you the “D/S” admission, you will be overstaying if you stay in the U.S. for a longer period of time.
Nonetheless, while it is common for individuals to overstay past the expiration date on the admission stamp or Form I-94 or after the “D/S” status ends, you should be aware of the penalties that may arise if you overstay without an extension.
Will I be penalized if I overstay a U.S. visa?
If you overstay a U.S. visa, you may be subject to various penalties, including, but not limited to:
- Not being able to come back to the U.S. for 3 to 10 years, depending on how long you overstayed.
- Restrictions from applying for an Extension of Stay, Change of Status, or Extension of Status.
- Visa will be automatically revoked or canceled.
- Barred from obtaining a new visa, except in your home country.
- Potentially barred from adjusting status in the U.S., even if you were otherwise eligible.
The penalty will depend on how long you overstayed. For example, if you overstay for 180 days or more, but less than one year, then you will be barred from coming back to the U.S. for three years once you depart the U.S. However, if you overstay for more than one year, you will be barred for ten years.
Further, if you stay in the U.S. for more than one year (even if it is not continuous, but rather in the aggregate), then try to enter without inspection, then you will be permanently banned from entering the U.S., potentially for life.
If you received a “final order of removal,” you must leave the U.S. within 90 days of receiving the order. If you do not, you may be subject to imprisonment or heavy fines.
Are there any exceptions to a visa overstay?
There are various exceptions to a visa overstay that you should be aware of.
One exception is a provision in the U.S. law that allows immediate relatives of U.S. citizens to be exempt from the visa overstay. However, this exemption only applies to:
- Unmarried children (under the age of 21)
However, in order to be eligible for this exemption and for adjustment of status (meaning they can get a green card in the U.S.), the immediate relative must have a lawful entry into the U.S. If someone entered the country without going through a CBP officer, they will not be able to submit a green card application.
Another exception exists if you can show that extraordinary circumstances exist or that your spouse, parent, or another immediate family member that is a U.S. citizen or lawful permanent resident, would suffer extreme hardship without you. However, this exception is very difficult to prove. An experienced lawyer can help you gather the documents you need to support your case.
Should I renew my visa?
Your visa is crucial for entry into the U.S. However, if your visa expires while you are already in the U.S., then you will be able to remain in the U.S. throughout the authorized stay based on the admission stamp or Form I-94.
If you want to renew your visa, you will have to go through the entire visa application process again.
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