The topic of aliens overstaying their visas has always been a hot one. Although this issue has received widespread attention recently there is still a lot of confusion regarding regulations for foreign nationals who stay past their authorized visit in the U.S.
Immigration Benefits Before 1996
Before the 1996 U.S. immigration law reforms were passed, people who stayed beyond their visa date didn’t have to worry about serious consequences. People who overstayed during that time could still be deported and were staying in the U.S. without legal status, but they could obtain immigration benefits. Some of these benefits included being able to apply for Asylum, Suspension of Deportation and Voluntary Departure or other forms of removal defense. Those who overstayed may be able to pursue an adjust of status upon payment of a civil penalty and could usually leave the U.S. and lawfully return.
Changes to Overstay Laws
To be considered an overstay one must be a nonimmigrant who stays past the authorized time determined at entry or past any extensions made to that time. Overstay laws have changed in many significant ways. The system is now automated and makes use of Machine Readable Passports. These systems keep entry and departure records of anyone entering the U.S.
Penalties for Overstaying a Visa
As a general the penalties for overstaying a visa can include:
- Depending on how long the person overstays, they may not be able to return to the U.S. for three to ten years.
- Those who overstay may not be approved for Extension of Stay or Change of Status
- Existing visas of those who overstay become void
- People who overstay may not be eligible to Adjust Status in the U.S.
These penalties are discussed in further detail below
Inadmissibility as a Penalty of Overstaying a Visa
New rules for inadmissibility of foreign nationals were created by the 1996 reforms. These new inadmissibility rules affect anyone who stays in the U.S. after their period of stay has expired. The attorney general authorizes the period of stay through the immigration inspector at the time of entry.
Three Year Ban
Anyone who stays in the U.S for over 180 days but fewer than 365 days after their authorized stay has expired and who leaves the U.S. before the institution of removal proceedings is not allowed to reenter the U.S. for three years from the date of departure. This is known as the “3 year bar”
Ten Year Ban
Anyone who stays in the U.S. for over 365 days after their authorized stay has expired and who leaves the U.S. before the institution of removal proceedings is not allowed to reenter the U.S. for ten years from the date of departure. This is known as the “10 year bar”
Ban to Change of Status and Extension of Stay as Penalty of Overstaying a Visa
Those who stay in the U.S. after their authorized period of stay cannot prolong their stay or change their current status to a nonimmigrant status. They will usually also be banned from changing their status from nonimmigrant to immigrant.
Nonetheless, the USCIS specified that if a foreign national files for an Extension of Stay or Change of Status or Adjustment of Status before their authorized stay expires, they will be deemed to be maintaining status until a decision on their application is made. This rule applies even if the decision is made after the I-94 date expires.
Voided Visa as Penalty of Overstaying a Visa
Any foreign national who overstays their period of stay will automatically have their visa voided. Immigration employs a strict interpretation and application of this rule. Overstaying by just one day will result in a visa being voided. Anyone who overstays their visa may not be readmitted until they acquire a new nonimmigrant visa in their home country.
Ban on Consulate Shopping as a Penalty of Overstaying a Visa
According to the new laws anyone who stays past their period of authorized stay in the U.S. must return to their home country to acquire a new visa. It is no longer permissible to apply at a consulate that is ‘more convenient’ or closer to the U.S. If no consulate in the persons home country issues visas the secretary of state may chose a third country where that individual can apply for a new visa.
A narrow exception to this rule does exist. If the person can prove that ‘extraordinary circumstances’ exist they might be able to apply for a visa at a consulate in a third country. Anyone who wishes to benefit from this exception must first receive the permission of the third country consulate and then make an appointment and submit a nonimmigrant visa application.
Ways to Avoid Overstaying a Visa
First, check your I-94’s expiration date. It is imperative that you exit the U.S. by the expiration of the authorized period of stay determined when you entered or by any successive Extension of Stay or Change of Status. You must leave by that date unless you file a well-timed, serious application for Extension of Stay, Change of Status or Adjustment of Status.
It is also important that you document your departure. Be sure your passport is stamped every time you enter another country and save your airline tickets, boarding passes and your travel itinerary.
Consequences of Overstaying Not Worth the Risk
Penalties for staying beyond your period of authorized stay in the U.S. are various and severe. Consequences range from being required to get a new visa to being banned from reentering the country for ten years. An extra day of vacation is simply not worth the risk.
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Beeraj Patel, Esq.
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