Will I Be Able to Reenter the U.S. If I Overstay My Tourist Visa?

Issues to consider when hoping to return to the U.S. after a tourist visa overstay.

The tourist visa (B-2 visa) allows foreign nationals to come to the U.S. to engage in typical tourism activities such as visiting Disney World, the White House, the Grand Canyon or going to see family. Every year, millions of foreign nationals enter the U.S. using tourist visas, and most of the time these foreign nationals encounter no difficulties exiting or reentering the U.S.

However, in many situations, the foreign national remains in the U.S. longer than the period of authorized stay. This is called “overstaying" your visa. This article explains how foreign nationals overstay their visas, the possible consequences of overstaying, and how you can make sure you are able to reenter the U.S. even after your overstay your visa.

How Do I Avoid Overstaying My Visa?

One reason that many people overstay their visas is because they do not know the difference between a visa and Form I-94, and end up overstaying unintentionally.

Your visa is a document that gives you permission to seek entry into the United States. (We say “permission to seek entry” because the border officer can refuse to allow you into the U.S. even if you have a valid visa.) Your visa may be valid for several years. For example, if you are an Indian national, your B-2 visa is most likely valid for ten years. However, the visa does not govern your authorized  stay  in the U.S. -- it merely allows you to  enter  the United States during that time period. Instead, your  Form I-94 governs your authorized stay in the United States.  

Up until April 2013, all nonimmigrant visitors to the U.S. received  a paper I-94 card. The border officer who processes your documents when you enter will give you the I-94 card, upon which he or she will have entered a required departure date.    After April 2013, the vast majority of U.S. visitors will no longer receive a paper I-94. Rather, they will be able to access their I-94 from the Customs and Border Protection website. The date on your Form I-94 is the last day you are permitted to remain in the U.S. and it may not be valid for as long as your visa is valid. You must depart the U.S. by the date on your Form I-94, or you will have overstayed your visa.

For example, let’s say you are an Indian national. You have a B-2 visa that is valid from April 1, 2012 through May 31, 2022. You want to come to the U.S. to visit Disney World. You enter the U.S. on April 5, 2013.  Your Form I-94  states your visa status is B1/2 and that your status expires on October 4, 2013.  You must leave the U.S. by October 4, 2013 (or change to another nonimmigrant status by that date) or you will be considered to be overstaying your visa.

What Happens if I Have Already Overstayed My Visa?

Overstaying your visa can be very serious. If you overstay your visa for 180 days or more (but less than one year), when you depart the U.S. you will be barred from reentering the U.S. for three years. If you overstay your visa for one year or more, when you depart the U.S. you will be barred from reentering the U.S. for ten years.

However, if you overstayed your visa for less than 180 days, leaving the U.S. will not trigger any bars to your reentry. But keep in mind that the next time you try to enter the U.S., the border officer will be able to see that you overstayed your visa on your previous stay. Border officers always have the discretion to not allow you U.S. entry. If you overstayed by only a few days or a couple of weeks, the officer will probably let you in. But if you overstayed for several months or close to 180 days, it is likely the officer will think you plan to overstay again, and will not let you in.

Overstaying your visa can jeopardize your ability to come to the U.S. in the future. If you find yourself in this situation, it is highly recommended that you contact an immigration lawyer who can assist you.

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