Staying past the expected departure date on your U.S. visa can carry some serious consequences. For example, your visa will be automatically voided, and you won’t be able to apply for a new visa at any consulate outside of your home country. In some cases, you may be barred from returning to the U.S. for a number of years, depending on how long you stayed and whether you fit into an exception or actually accrued “unlawful presence,” which is a separate definition under the law. We’ll look at this in more detail below.
How Long Did You Overstay?
First, let’s be clear on when you were expected to leave. This would be the date shown on your Form I-94 Arrival/Departure Record. That’s a different date from the expiration date of your visa, which is merely the last date upon which you could have used that document to enter the United States. So you’ll need to count forward from the date on your I-94.
If you entered the U.S. as a student, your I-94 will likely say “D/S,” for duration of status. That means your overstay begins when you stop studying or complying with the terms of your visa. However, for purposes of the time bars discussed in this article, the important issue is whether you actually accrued “unlawful presence,” which students don’t do unless an immigration official or judge has deemed them unlawfully present.
Did You Accrue Unlawful Presence?
It’s easier to define what unlawful presence isn’t than what it is. You won’t accrue unlawful presence for purposes of the three- and ten-year time bars described below if and when you:
- were under the age of 18
- had a bona fide pending asylum application on file with USCIS
- were a beneficiary of the family unity program (for families of people who received green cards as farmworkers or under the amnesty program of the 1980s)
- had a pending application for either adjustment of status (a green card), an extension of status, or a change of status
- were a battered spouse or child who entered on a nonimmigrant visa and can show a connection between the abuse and the overstay
- were a victim of trafficking who can show that the trafficking was at least one central reason for your unlawful presence, or
- had received protection via Temporary Protected Status (TPS), Deferred Enforced Departure (DED), Deferred Action, or Withholding of Removal under the Convention Against Torture.
For anyone else who overstayed a visa, it’s likely that their unlawful presence time was adding up and can be held against them. And for people subject to the permanent bar, also described below, USCIS contends that these exceptions do not apply (though you would want to talk to a lawyer about this, as this is the subject of ongoing argument).
Time Bars for Accruing Unlawful Presence
There are three levels of penalties for overstaying a U.S. visa and accruing unlawful presence that can end with you being banned from the U.S. for a period of time — or permanently.
- If you accrue unlawful presence of more than 180 continuous days but less than one year, but you leave before any official, formal removal procedures (i.e. deportation) are instituted against you, you will be barred from reentering the United States for a period of three years.
- If you accrue unlawful presence of more than 365 continuous days, then leave prior to any deportation or other formal procedures being instituted against you, you will be subsequently barred from reentering the United States for a period of ten years.
- If you accrue unlawful presence of more than one year total (in the aggregate, not necessarily continuous), or are ordered removed (deported) from the U.S., and subsequently attempt to enter without inspection (for example, attempt to sneak across the border), then you will be permanently barred from the U.S., with no waiver available except to VAWA self-petitioners. (After ten years, however, you can request special permission to apply for a U.S. visa or green card.)
It’s important to note that these consequences apply only if you depart the United States and attempt to return. In a few rare instances, people eligible for green cards can avoid the time bars by adjusting status within the U.S. — that is, submitting all their paperwork to USCIS and attending an interview within the United States.
However, not everyone is eligible to adjust status. For example, people who entered the U.S. illegally (without a visa or other lawful admission) cannot adjust status. Such people would, despite being technically eligible for a green card, have to apply for it through an overseas U.S. consulate, at which time the time bars could be applied, unless they qualify for a waiver based on extreme hardship to a qualifying U.S. relative. But there’s a way around this trap for some immediate relatives of U.S. citizens, if no other grounds of inadmissibility apply to them and they can prove extreme hardship to a U.S. citizen spouse or parent: They may be able to apply for a “provisional waiver” (also called the “stateside waiver”) from USCIS, and make sure it’s approved, before leaving for the U.S. consulate.
Eligibility for Waiver of the Three- and Ten-Year Bars
The waiver applies to intending immigrants who can demonstrate that if the waiver and visa are not granted, their U.S. citizen or lawful permanent resident spouse or parents would suffer extreme hardship. But extreme hardship can be difficult to prove — it means more than the hardship that any family member would feel upon facing separation due to denial of a visa. Medical, financial, educational, and other factors are taken into account.
If you have overstayed your visa, and wish to remain in the U.S. legally or return here in the future, or to apply for a waiver, you should definitely consult with a qualified immigration lawyer as soon as possible. Your lawyer can evaluate how much unlawful presence you have accrued and explain any possible options for dealing with your visa overstay.