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What Happens if You Overstay Your Visa?

What Happens if You Overstay Your Visa?

Nonimmigrant visas are temporary. You might obtain a nonimmigrant visa for a variety of reasons, including business, tourism, temporary work, education, and more. Some of these visas last only a few months, while others last several years, and only some can be extended or changed.

Even before the chaos of the COVID-19 pandemic, accidentally overstaying a visa was relatively easy. If you have a nonimmigrant visa, you must know the difference between the visa expiration date and the “admit until” date on your Form I-94 Arrival/Departure Record. The expiration date tells you how long you have until you can enter the U.S., while the “admit until” date is what tells you when you must leave.

Now, due to travel restrictions, quarantines, tightened policies, and other new challenges, abiding by these restrictions and expiration dates may be anything but straightforward. If you violate the terms of your visa, however, you may not be able to return to the United States. USCIS can deny any petitions or applications you send at a later point if you previously overstayed a visa.

More specifically, you may receive:

  • A 3-year bar to entry if you accumulate 180 or more days of unlawful presence
  • A 10-year bar to entry if you are unlawfully present for a year or longer

Any time spent in the U.S. after your visa has expired counts as unlawful presence. Spouses and other immediate relatives of U.S. citizens, however, may be exempt from these bars.

Some nonimmigrant visas allow you to adjust your status to permanent residence (i.e. obtain a green card). The adjustment of status process is meant to occur within the United States. If you stay past your “admit until” date, however, USCIS will deny your adjustment of status application. You will then need to leave the U.S., wait out the 3- or 10-year bar, and apply for an immigrant visa through consular processing.

Overcoming Unlawful Presence

If you become inadmissible because you overstayed your visa, you may be able to obtain a waiver of inadmissibility. A waiver could forgive your unlawful presence, and it never expires. With a waiver, you can potentially qualify for another visa or a green card.

Obtaining a waiver is no simple feat, however. Essentially, you must convince the adjudicating officer to ignore the fact that you overstayed your visa. Most individuals who obtain waivers have demonstrated that their spouse or parent (who is a U.S. citizen or lawful permanent resident) would experience extreme hardship if the adjudicating officer denied their application.

Flexibility During COVID-19

Fortunately, USCIS has announced relative flexibility with visa overstays because of the COVID-19 pandemic.

Here are the major points to understand in this announcement:

  • You may be eligible for an extension of stay (EOS) or change of status (COS). Most nonimmigrant categories allow visa holders to extend their stay or change their status, but they must apply for this before their current visa expires. If you submit your application in time, you will not accrue unlawful presence while your application is pending.
  • A timely filed EOS or COS automatically extends your employment authorization. If you apply to extend or change your status in time, your employment authorization should automatically extend for up to 240 days after the original expiration date (unless your employer or employment terms change).
  • USCIS may forgive a late EOS or COS. If you file your EOS or COS after the deadline because of COVID-19-related circumstances, USCIS may excuse the delay. You will need to submit substantial evidence with your EOS or COS application to demonstrate why COVID-19 (or another extraordinary circumstance) led to your delay.
  • USCIS may grant a period of satisfactory departure for Visa Waiver Program entrants. Some countries are part of the Visa Waiver Program, which allows their citizens to visit the U.S. for 90 days or less without obtaining a visa, but they cannot extend their stay. If Visa Waiver Program entrants stay longer than they are permitted due to circumstances like COVID-19, USCIS may grant them an additional 30 days to leave without receiving a penalty.

Although you do have ways to avoid and potentially overturn consequences for overstaying your visa, the best way to retain your rights and opportunities is to seek professional help. With an experienced attorney by your side, you will have the greatest likelihood of leaving the U.S. lawfully and returning without an issue.

Bring your questions and concerns to Kanu & Associates, P.C. Our attorneys have 15+ years of experience in immigration law, and we look forward to putting our skills to work for your future. Call (602) 353-7795 or contact us online today.

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