If you have overstayed on your F-1 or J-1 student visa, your options for staying in the United States will vary depending on whether you are still in the country and whether you have accrued what is known as "unlawful presence."
An overstay occurs when you are still present in the United States after your period of authorized stay expires. The period of authorized stay for any nonimmigrant in the United States is shown on the I-94 card that you are given by the Customs and Border Protection (CBP) officials when entering the United States.
Most nonimmigrants' I-94 cards will be marked with a date that shows when this period ends and they are expected to leave the United States. If you are an F-1 or J-1 student, however, you will not be given a specific date. The regulations recognize that academic programs are not fixed in duration, and that there is an option for students to participate in optional practical training (OPT) when the program is completed. So, instead of a date on your I-94 card, you will have the annotation “D/S,” which means “duration of status.”
This D/S annotation makes it difficult for some students to know whether they have overstayed. In most cases, an overstay begins when you are still in the United States after your studies or training period are over, your grace period has ended, and you have taken no action to apply for a change of status.
If you are still in the United States after realizing that you overstayed, your best bet is most likely to return home as soon as possible. Because you are no longer in valid immigration status, you will not have the option to apply for a new status from inside the country.
If you are qualified for another immigration status, you will have to return home and consular process a new visa in order to wipe out the overstay issue. For example, if you are offered a job and the employer wants to sponsor you for H-1B status, the petition could be approved, but you would have to leave the country to apply for the H-1B visa.
One possible exception to returning home after an overstay exists if you are married to a U.S. citizen. If your U.S. citizen spouse sponsors you as an immediate relative for permanent residence, you can apply for adjustment of status within the United States. You will want to be very careful if you decide to go through with this process. The immigration officer has the discretion to deny your application and he or she will most likely ask you about why you stayed in the United States after your status expired. It is always a good idea to retain an immigration attorney when you apply for a benefit while you are out of status.
If you decide to stay in the United States, you put yourself at risk for accumulating what's called "unlawful presence." Unlawful presence will ultimately lead to a finding of inadmissibility and a bar to reentering the United States.
Like an overstay, unlawful presence generally begins after a person's period of authorized stay expires. For most nonimmigrants, this concept is straightforward. For example, if a B-1 visitor’s stay ends on July 1, 2012, that person will begin to accrue unlawful presence on July 2, 2012.
For F-1 and J-1 students admitted for D/S, however, unlawful presence will not begin until U.S. Citizenship and Immigration Services (USCIS) or another relevant government authority makes a formal determination that you are here unlawfully. For example, if you overstayed 90 days before receiving a formal determination from USCIS that you were in the United States unlawfully, those 90 days would not count towards the 180-day period and the clock for unlawful presence would begin on the date USCIS made that decision. These determinations are often made when an F-1 or J-1 student files a change of status application after having overstayed.
The punishment for unlawful presence is severe. The immigration regulations state that 180 days of unlawful presence will result in a finding of inadmissibility and a three-year bar to reentry. If you accrue 365 days or more of unlawful presence, you will face a ten-year bar to reentry. In order to avoid this punishment, you should depart the United States as soon as you possibly can.
If you have already left the United States,your previous overstay will not necessarily prevent you from returning unless you did accrued 180 days or more of unlawful presence before leaving and are therefore barred from reentry.
If you accrued fewer than 180 days of unlawful presence, you can still apply to return to the United States if you otherwise qualify for another nonimmigrant or immigrant status. Be prepared to explain why you overstayed in case you are questioned about it at the consulate or port of entry -- it may be seen as bad sign regarding your credibility or willingness to comply with the terms of your new visa. The information about your overstay will have been recorded; CBP notes your departure date when you surrender your I-94 card upon leaving.
If you have overstayed a student or other nonimmigrant visa, you should consult with an immigration attorney about your rights and responsibilities. The immigration attorney can also determine if you have any options after accruing unlawful presence.