Visa Overstays FAQs
It is common for persons from a foreign country that have entered the U.S. legally to overstay the time to say given to them at the time of entry. This time is usually stated on a document in their passport, or attached to it, stating the time limitations of their visa and other restrictions such as inability to apply for green cards, and other visa restrictions. If you have overstayed your travel/ visitor, fiance, or work visa or other entry documents, regardless of type, you may have a number of penalties or consequences resulting from this overstay and I may be able to help you with them. I have set out some of them below.
*Note: With an overstay, particularly with reference to a green card, TIMING IS VERY IMPORTANT. IN IMMIGRATIONS CASES AND ESPECIALLY THOSE CONCERNING PREMANENT RESIDENCY / GREEN CARDS. WHEN YOU ACT MAY BE THE MOST IMPORTANT FACTOR IN YOUR CASE. IF YOU WOULD LIKE TO PRIVATELY DISCUSS YOUR CASE, OR THAT OF YOUR FAMILY OR FRIENDS, PLEASE CALL.
*You may make an appointment for your private call with me by CLICKING HERE and going to my calendar for your appointment. I would also be pleased to call you back if you would send me an email as indicated on this page. I look forward to talking to you and solving your problem.
All communications regarding any of your immigration matters are, by law, covered by the attorney-client privilege and may not be disclosed to other persons or organizations. “I take privacy seriously and I will keep your confidence”.
Cal Knickerbocker, Attorney at Law.Overstay? So What? Here are some issues which may be important to you:
Visa overstays, who leave the US may be barred from returning to the U.S. for 3 or 10 years, depending on the period overstayed. If your last entry into the US was legal you may have some rights even after an overstay. If you leave you may not be able to return (however, some waivers are available depending on individual circumstances. Don’t Leave without consulting an immigrations attorney whether it is myself or someone else.3 YEAR / 10 YEAR BARS FROM RETURNING TO THE US.
The Three Year Bar: Persons who remain in the U.S. after their authorized stay has expired for more than 180 days, but less than one year, and who are not in removal, may be barred from reentering the US for three years from the date they left. The Ten Year Bar: Persons who remain in the U.S. after their authorized stay has expired for more than one year, and who are not in removal, may be barred from reentering the U.S. for ten years from the date they left.
Change of Status / Extension of Stay
Persons who remain in the U.S. after their authorized stay are not able to extend their stay in the U.S. or adjust their status to another nonimmigrant status. In many cases they may also be barred from Petitioning for an Adjustment of Status (green card) and that of a Permanent resident. Ie. From the status of a non-immigrant to that of an immigrant.
However, it is the USCIS policy at this time to allow foreign nationals to file for an Extension of Stay, or Change by Adjustment of Status, before the period of authorized stay expires; in this case the foreign national will be considered to be maintaining status until a decision is made on the application or petition, even if the decision is after the date on the I-94 expires.
Note: In addition, there are also many cases where an Adjustment of Status Petition (green card) may be filed for persons who remain in the US but have overstayed their allowed time ( I-94 dates), but still wish to apply for Permanent Residency and Remain in the US while their adjustment is being processed. Please call me to discuss your particular needs.Consequence #3: Visa Voidance
The visa of any person that overstays their period of stay (I-94 time) is void. In general it cannot be reinstated without significant legal work and filing. Immigration is strict in its interpretation and application of this provision – overstaying by even one day will void your existing visa. A foreign national who has overstayed a visa may not be readmitted to the U.S. unless they have obtained a new nonimmigrant visa in their country of nationality; however, they may not be able to obtain a new visa due to the bans which arise with visa overstays or flagging of their file by the consulate or embassy. A good rule of thumb is that if you are in the U.S. but have overstayed you should Not leave the country until you have taken action to change your status.Consequence #4: No Consulate Shopping
The law provides that any foreign national who has stayed beyond his period of authorized stay in the U.S. must return to his country of nationality to obtain a new visa. As an overstay you may no longer apply at a consulate that is ‘more convenient’ or closer to the U.S. If there is no consulate in your home country of nationality which issues visas, the Secretary of State may designate a third country where those individuals can apply for a new visa.Exception to this Consequence
There is a narrow exception to this rule. If the foreign national can show that ‘extraordinary circumstances’ exist, they may be allowed to apply for a visa at a Consulate in a third country, i.e., a country that is not their country of nationality. Using this exception requires careful preparation of a submission package fully documenting “extraordinary circumstances” you are relying on and general should not be undertaken without the assistance of an attorney or other trained person. Any person wanting to take advantage of this exception must also receive the consent of the third country consulate before making an appointment and submitting a nonimmigrant visa application.How a Waiver Can Help an Overstay Case
If you have overstayed your visa, you may be eligible for a waiver, which would mean you could avoid the three or ten year bar. This waiver, and the grounds for it, must be carefully set forth with specific filing, petitions and documentation.Waivers for Nonimmigrants
While a nonimmigrant is not eligible to apply for a waiver for the three or ten year bar, an individual would still be able to apply for a general waiver for most grounds of inadmissibility.Waivers for Immigrants
The statute does provide a specific waiver for the three or ten year bar for persons who are the spouse, son or daughter of a U.S. citizen or permanent resident. The waiver is not available to persons who only have children who are U.S. citizens or permanent residents.
To obtain the waiver, the foreign national must show that their U.S. citizen or permanent resident spouse or parents will suffer ‘extreme hardship’ if the foreign national is not allowed to return to the U.S. ‘Extreme hardship’ to the foreign national himself is not recognized for the purposes of the waiver. This obviously raises the question “what is Extreme Hardship”? Each case is different and must be carefully analyzed on its particular facts to determine applicability and eligibility for this waiver.Why Legal Help for Overstaying Your Visa is Important
Overstaying a visa is a serious matter and the USCIS / ICE have indicated their intent to give particular attention who have overstayed yet remain illegally in the U.S. This can have serious repercussions, both short and long term; but these can be mitigated or wholly avoided, with assistance of a legal expert. An individual with an expired visa may be facing face consequences that may have been wholly avoidable.
We would be pleased to discuss the particular facts of your case and how we can help.