Can My U.S. Visa Overstay Be Forgiven?

Depending on your specific circumstances, you may be "forgiven" for overstaying a temporary visa, and obtain further immigration benefits.

The impact of a visa overstay in the United States, and whether it can be "forgiven," depends on the how long you stayed and what immigration benefit you are currently seeking. The U.S. immigration laws contain various penalties for people who overstay a visa. Nevertheless, there are situations in which you can apply for legal forgiveness or a waiver, and receive a U.S. immigration benefit (such as a green card) despite your overstay.

Automatic Visa Revocation

Even if you have stayed past the permitted departure date on your visa by one day -- assuming you didn't file for a change or extension of status before the departure date -- the visa will be automatically voided and cancelled. What’s more, you won't be able to apply for a new visa at any consulate outside of your home country.

There is no waiver or forgiveness for this. But if you did, in fact, file for a change or extension of status before the departure date, and that is eventually granted, none of your overstay will count against you. But if your request is ultimately denied, you're out of luck -- all time past the date you were supposed to depart will count against you.

Exactly How Long Was Your Overstay?

Make sure that you are looking at the correct date of when you were supposed to leave. It’s the one shown on your Form I-94 Arrival/Departure Record.

That's a different date from the expiration date of your visa. Many people are confused by this. A visa is merely an entry document, and its expiration date indicates the last date upon which you could have used it to enter the United States. So to calculate the length of your overstay, you'll need to count forward from the date on your I-94.

If you entered the U.S. on a student visa, 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, whether that overstay makes you inadmissible in the future depends on whether you actually accrued "unlawful presence," a separate legal definition. Students do not accrue unlawful presence until and unless an immigration official or judge has deemed them unlawfully present.

Overstay of Less Than 180 Days

If your overstay in the United States was for less than six months (180 days), then you are not legally inadmissible in the future. You can be granted another visa, or even a U.S. green card (lawful permanent residence). However, if you are applying for a temporary (nonimmigrant) visa, and it’s one of the many that requires you to convince the U.S. consular official that you will leave the United States when your permitted stay is over, you may have a tough time making this showing if and when the consular officer becomes aware of your past overstay.

Overstay of More Than 180 Days

You may face severe penalties for overstaying a U.S. visa by more than six months, as described below. We’re assuming that during of your overstay, you were simultaneously accruing what’s known as "unlawful presence." But see below for the exceptions to this.

  • If you accrue unlawful presence of more than 180 continuous days but less than one year, and then leave before any official, formal removal proceedings (i.e. deportation) are instituted against you, you will be inadmissible -- that is, barred from returning to the United States -- for three years.
  • If you accrue unlawful presence of more than 365 continuous days, then leave prior to any removal or other proceedings being instituted against you, you will be subsequently inadmissible and barred from returning to the United States for ten years.
  • If you accrue unlawful presence of more than one year (in the aggregate, not necessarily continuously), or are ordered removed (deported) from the United States, and subsequently attempt to enter without inspection (for example, by being smuggled across the border), then you will be permanently barred from the U.S. – possibly for life, though you can actually request special permission to reapply for entry after ten years.

The key here is to understand 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 these penalties by adjusting status within the U.S. -- that is, submitting all their paperwork to U.S. Citizenship and Immigration Services (USCIS) and attending their interview within the United States.

However, you may not have a choice about whether to adjust status. Only limited categories of people are eligible to use this procedure. 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 a U.S. consulate in their home country, at which time the time bar penalties could be applied against them.

Exceptions Whose Overstay Won’t Be Held Against Them

You won't accrue unlawful presence for purposes of the three- and ten-year time bars described above 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 close relatives 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 the 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.

If you’re not in one of these categories, it's likely that your unlawful presence can be held against you. And if you are subject to the permanent bar, USCIS argues that none of these exceptions apply. (Talk to a lawyer if you are in this situation, just in case the laws or policy change.)

Waiver of the Three- and Ten-Year Time Bars

A waiver is available to people who can demonstrate that if they are not granted the requested immigration benefit, such as a green card, their U.S. citizen or lawful permanent resident spouse or parents would suffer extreme hardship.

But extreme hardship is notoriously difficult to prove. It means demonstrating more than the hardship that any family member would feel upon facing separation due to denial of a visa. You’d want to be able to show severe financial, emotional, or medical consequences to one of your U.S. family members.

And the stakes are high: Many applicants are unable to find out before leaving the United States whether the waiver will be granted, but need to first leave the country and show up for the consular interview.

An exception exists if you're the immediate relative of a U.S. citizen, no other grounds of inadmissibility apply to you, and the hardship you're alleging is either to your U.S. citizen spouse or parent (not child), you may be able to apply for a "provisional" or "stateside" waiver before you leave the U.S. for your interview. See Staying in the U.S. With The I-601A Provisional Waiver of Inadmissibility.

Definitely get a lawyer’s help if you’re considering applying for one of these waivers. The lawyer can help assess whether your local consulate is likely to be sympathetic to your waiver request (some are more sympathetic than others), and help you gather documents and affidavits in support of your family’s claim to extreme hardship.

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