Consequences of Overstaying on a Temporary U.S. Visa

Staying past the expected departure date under the terms of your U.S. visa can carry serious consequences.

By , J.D.

As someone visiting the United States from another country, it's important to keep track of the date upon which you're expected to depart. Staying past the date that Customs and Border Protection (CBP) set for you according to the terms of your U.S. visa can carry serious consequences. For example, your U.S. visa will be automatically voided, and you won't be able to apply for a new visa at any U.S. consulate outside of your home country. In some situations, you could be barred from returning to the U.S. for a number of years, depending on how long you overstayed and whether you accrued "unlawful presence. We'll look at these issues in more detail below.

How Long Did You Overstay in the U.S.?

First, let's be clear on when exactly you were expected to leave. This would be the date shown on your Form I-94 Arrival/Departure Record, given to you by CBP or entered in its database. 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. (A visa is simply an entry document, though the type of visa you're on definitely dictates the length and terms of your permitted stay in the United States.) So you'll need to count forward from the date on your I-94.

If you entered the U.S. as an F-1 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 F-1 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 technically do unless an immigration official or judge has deemed them unlawfully present.

Is It Really Too Late to Apply for an Extension or Change of Status?

In most cases, any application to renew a stay or change to another status in the U.S. must be filed with USCIS before one's permitted stay expires. Exceptions can be made, however, particularly if an emergency situation stopped you from applying earlier. During the coronavirus or COVID-19 pandemic, for instance, USCIS announced that it would be flexible in allowing late applications for an extension or change of status to people whose departure from the U.S. was delayed as a result of illness or something related to the pandemic.

Did You Accrue Unlawful Presence in the U.S.?

A record of spending time in the U.S. unlawfully can create problems for your future immigration or travel-related plans. However, it's easier to define what unlawful presence isn't than what it is. You won't accrue unlawful presence in the United States 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 the permitted time on their visa, it's likely that their unlawful presence time was adding up and can be held against them. And for people who are subject to the permanent bar, also described below, USCIS contends that the above exceptions do not apply (though you would want to talk to a lawyer about this, as it's the subject of ongoing argument).

Are You Subject to Time Bars for Having Accrued Unlawful Presence in the U.S.?

There are three levels of penalties for overstaying a U.S. visa and accruing unlawful presence, which can end with you being banned from the U.S. for a long period of time—or permanently.

  • If you accrue unlawful presence of more than 180 continuous days but less than one year, but you leave the U.S. before any official, formal removal procedures (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 the U.S. 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 unless you are a VAWA self-petitioner. (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 the above consequences apply only if you depart the United States and attempt to return. In a few rare instances, people who are eligible for green cards can avoid the time bars by adjusting status within the U.S.—that is, by submitting all their paperwork to USCIS and attending an interview within the United States.

However, not everyone is eligible to use the "adjustment of status" application procedure. For example, people who entered the U.S. illegally (without a visa or other lawful admission) and meet the basic eligibility requirements for a green card cannot apply for it this way. 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.

Fortunately, you can now apply for this waiver before departing the U.S., using Form I-601A. You'll need to show that no other grounds of inadmissibility apply to you and be able to prove extreme hardship to a U.S. citizen spouse or parent. If approved for this "provisional waiver" (also called the "stateside waiver") before leaving for the U.S. consulate, you'll have a fair degree of assurance that the consulate won't apply the time bars (though it's still free to make its own determination, or find you inadmissible on some other grounds).

If you have any additional grounds of inadmissibility beyond unlawful presence, however, you cannot use the I-601A waiver. Your only choice is to leave the U.S. for your consular interview and then apply for the needed waivers using Form I-601.

Who Is Eligible for a Waiver of the Three- and Ten-Year Bars on U.S. Admission?

The waiver is a possibility for 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.

Getting Legal Help

If you have overstayed your permitted time on a 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 overstay.

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