Staying past the expected departure date under the terms of your U.S. visa can carry 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.
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.
In most cases, any application to renew your 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.
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:
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 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 it's the subject of ongoing argument).
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.
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 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 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.
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).
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.
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.