Re-Entering the U.S. After Overstaying a Student Visa

If you previously overstayed a student visa, you may run into trouble returning to the United States.

If you overstayed a student visa (or any other visa) before leaving the United States, you may have trouble returning, even for a short visit. For starters, even if the expiration date on your student visa hasn't run out, your visa was automatically cancelled by your overstay. You will need to apply for a new visa before returning -- and you will be restricted to doing so only in your country of nationality, not in a third country (for example, if you're traveling and want to add the U.S. to your itinerary).

(Confused by how someone could overstay a visa that hasn't expired? Remember, it's the I-94 that controls the length of your permitted stay, not the visa.)

You also face two more problems:

  • Depending on the length of your overstay, you may be inadmissible to the U.S. for a period of years.
  • Even if you are not inadmissible on the above grounds, you may have trouble convincing a consular official to award you a new visa, given your overstay record.

Inadmissibility Based on Length of Overstay

Staying a few days or weeks past the date you were expected to leave the U.S. won't make you automatically inadmissible (ineligible for another visa or green card or U.S. entry). However, once your overstay lasts 180 days or more, you will have inadmissibility issues, as follows:

  • An alien whose unlawful presence in the U.S. (for example, on a visa overstay) lasted between 180 days (six months) and 365 days (one year) and who then leaves the United States will be considered inadmissible for three years, starting from the date he or she left the United States.
  • An alien whose unlawful U.S. presence lasted for one year or longer and who then leaves the United States will be considered inadmissible for a period of ten years, starting from the date he or she left the United States. 

Unlawful presence is a complex concept within the immigration laws, and various exceptions apply. For example, time spent in the U.S. unlawfully when you were under the age of 18 doesn't count. Some green card applicants may also be able to apply for a waiver (legal forgiveness) of their overstay. For more information on this topic, see the next section on unlawful presence rules for students, as well as the article, Three-Year and Ten-Year Time Bars for Unlawful U.S. Presence.

Special Rules Regarding Unlawful Presence for Students

The student visa is an unusual one, in that when you enter the U.S., you are not given a firm departure date (on your I-94). Instead, your I-94 will say "D/S," for duration of status. That means you are allowed to stay in the U.S. until you have completed your studies (assuming you don't violate the terms of your status up until that point, for example by dropping out of school for a semester).

As a result, your overstay does not technically count as "unlawful presence" for purposes of the inadmissibility bars unless and until U.S. Citizenship and Immigration Services (USCIS) or an immigration judge has officially determined that your authorized stay is terminated as of a certain date.

Applying for a New Nonimmigrant Visa

If you apply for another student visa, a visitor visa, or any other nonimmigrant (temporary) visa to the United States, you will most likely be asked to prove "nonimmigrant intent" -- that is, that you truly plan to stay only for the time allotted, and not to attempt to settle in the United States. Your past visa overstay may, depending on its length and factual circumstances, raise doubts about your intent. For more information on the requirements for receiving a nonimmigrant visa to the U.S., see "Temporary (Nonimmigrant) Visas."

See an Expert

If you or a member of your family has overstayed on a student visa and is having trouble obtaining another visa to the United States, it may be helpful to discuss the problem with an immigration attorney. The lawyer can review the circumstances of the visa overstay and assist you in understanding any options to rectify the situation.

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