Re-Entering the U.S. After Overstaying an F-1 Student Visa

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

If you have overstayed the time permitted under an F-1 student visa (or any other visa) before leaving the United States, you might have trouble returning, even for a short visit.

For starters, even if the expiration date on your F-1 student visa hasn't run out, that visa is just an entry document. You must look to your I-94, a document created by Customs and Border Protection (CBP) when you arrived at the U.S. airport, border, or other entry point, to see when your permitted stay ends. If you remain in the U.S. beyond that allowed time, your visa is automatically canceled.

Then, because of your overstay, you will need to apply for a new visa before returning to the U.S.—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).

You also face two more potential problems:

  • Depending on the length of your overstay, you might be inadmissible to the U.S. for a period of years.
  • Even if you are not inadmissible on the above grounds, you might 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, if your overstay lasted 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 U.S. immigration law, and various exceptions apply.

For example, time spent in the U.S. unlawfully when one was under the age of 18 doesn't count. Some green card applicants might also be able to apply for a waiver (legal forgiveness) of their overstay.

For more on this topic, see the next section on unlawful presence rules for F-1 students, as well as, Three-Year and Ten-Year Time Bars for Unlawful U.S. Presence.

Special Rules Regarding Unlawful Presence for F-1 Students

The student visa is an unusual one, in that when you enter the U.S., you are normally not given a firm departure date. 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.

This is, however, an evolving area of the law; the Trump Administration has attempted to alter this rule and make it harsher on students. Check with an experienced lawyer for the latest.

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 could, depending on its length and factual circumstances, raise doubts about your intent.

See an Expert

If you or a member of your family has overstayed the time permitted on an F-1 student visa and is having trouble obtaining another visa to the United States, it might 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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