What happens if you overstay your visa? A U.S. Visa has very specific rules which must be closely followed. Many people do not know what happens if they overstay their visas. It may be tempting to simply stay in the U.S. without taking any action; however, this will result in serious consequences. It is important to understand the terms of your visa because this will help to determine how to handle staying too long.

Arrival and Departure

The arrival and departure dates are critical to understanding when your visa expires. Form I-94 shows the actual date of your arrival, which is typically not the same as the date your visa expires. It is essential that you know the date that your visa expires because you must take action prior to that date. If you fail to try to extend your visa or make any other type of request, you will be at fault for overstaying your visa. This will make you vulnerable to possible removal actions.

Unlawful Presence

Unlawful presence is any time that you spend in the U.S. without authorization. Time unlawfully spent in the U.S. accrues and may be held against you. Generally, time accrues unless you meet one of the specific exemptions which include:

  • Was A Minor
  • Has Pending Asylum Application On File
  • Was Part of the Beneficiary Unity Program
  • Was a Battered Spouse or Child
  • Was the Victim of Trafficking
  • Has Received Temporary Protected Status (TPS)

Unless you meet any of these special circumstances, you will accumulate unlawful presence time. This time will be used to determine if you are eligible to return to the U.S. and if so, when.

Accrual of Unlawful Presence

There are penalties for unlawful presence. The penalties depend on the amount of unlawful presence time accrued. There are three levels of penalties assessed based on the amount of time that you were unlawfully in the United States. An accrual of between 180 and 164 days of continuous presence, but leave prior to deportation, will result in being barred from the U.S. for a period of three years. An accrual of 365 days or more, without deportation, results in being barred from the U.S. for ten years. An unlawful accrual of more than a year, where deportation was ordered, results in a permanent bar from the U.S.

Eligibility for a Waiver

A waiver is a way for qualified immigrants to remain in the country due to hardship circumstances. It is essential to adjust your status if you need to stay in the U.S. longer than your visa allows. A provisional waiver, or stateside waiver, may be possible, depending on your particular circumstances. Generally, waivers may be granted after the three or ten year time limits have been reached. Overstaying your visa is a complicated matter that is best handled with help from an experienced immigration attorney.

 

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding What Happens If You Overstay Your Visa, or other Immigration Law matters, please feel free to contact Phil D. Ortega at  480.461.5330, log on to udallshumway.com,  or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.