It is not uncommon for foreign nationals to overstay the time their visa allows. The United States immigration anticipates this and has laws containing several penalties for those who stay in the country longer than they should. Your penalties will depend on the circumstances of your situation. You are also eligible for a waiver, but with the help of a skilled immigration professional. This article will discuss what it means to overstay your visa and its implications. You can speak to an experienced immigration attorney for more information and guidance on what you could do to avoid facing severe consequences.
Have You Overstayed Your Visa?
Visitors from foreign countries are welcome to the United States. But they must enter the country lawfully using nonimmigrant visas. Nonimmigrant visas are issued to foreign nationals seeking to enter the country temporarily for business, tourism, medical treatment, and sometimes for a specific type of temporary work. The immigration law defines specific nonimmigrant visas issued according to the applicant's particular purpose of their travel. Examples include the following:
- K-1 visas, which are issued to a fiance(e) of U.S citizens
- M-1 visas are issued to a student coming to the United States for a particular vocation program
- B-2 visas, which are issued to tourists coming from various patriots of the world
Each visa specifies the period the applicant will remain in the United States. The Immigration officials processing your visa and officials from Customs and Border Protection will inform you of the day by which you must depart. This information will also be on online records in a 1-94 form. It means that the immigration department can quickly tell whether you are still within the country even after the expiration of your visa by conducting a quick check on you from their system.
The expiration date of your nonimmigrant visa is the end of your approved stay period in the United States. The period of your authorized stay is when your visa allows you to stay in the country. You can also quickly find that information on your online 1-94 form. Initially, the immigration department issued 1-94 forms in the form of paper cards. Today, they are accessible online on the Customs and Border Protection website.
Remember that your visa is your entry document into another country. Thus, it could run out first before the date indicated only our 1-94 form, except in situations where you have several visitor visas that allow you to enter the country for years. Even after your visa runs out, you are technically within your constitutional rights to remain in the country until the time provided on your 1-94 form.
Additionally, you can petition the immigration department to extend your stay in the United States based on the kind of document you hold and its conditions. For instance, if you came here for temporary employment, and your U.S employer is willing to continue working with you after the end of your authorized stay, and your visa allows extensions, you can apply for an extension. Note that extension applications are submitted to the immigration before your authorized stay ends. You must file USCIS form 1-539 to make your request.
USCIS is usually overwhelmed by the increasing number of applications they receive yearly. Thus, your application for an extension can take longer before approval. That could even mean going beyond the date for your authorized stay. That should not be a cause for worry because USCIS allows an automatic extension to applicants who file petitions before their approved stay period runs out. However, they must review and approve your application for you to enjoy the automatic extension from its previous end date. Remember that this will happen whether or not USCIS approves your application for an extended stay before or after its due date. The automatic approval ensures you have no unexplained gaps in your approved stay period.
But, if USCIS reviews your application for extension after the end of your authorized stay and does not grant your request, you will be required to leave the country immediately. You will not be penalized for the extra time you have overstayed your visa awaiting your application's approval.
Consequences of Overstaying Your Visa
Overstaying your visa occurs when you remain in the United States longer than your nonimmigrant visa allows. All visas come with expiration dates. Your approved stay period is also indicated on your 1-94 form. You are required to leave the country by the time your visa expires. But, sometimes, it does not happen like that for one reason or another. If you have not left the country when you are supposed to leave and have not applied for an extension, you will likely face the following consequences:
You Could Face Deportation
Deportation is the forceful removal of a nonimmigrant from the United States for violating one or more immigration or criminal laws. Once deported, you lose your right to return to the country, even as a visitor. The ban to travel back to America could be for a few years, several years, or permanently, based on the circumstances of your case. Deportation is a legal process.
Thus, you have legal rights that the immigration law must respect before your removal, including your right to fight deportation. Some people successfully fight their deportation and are allowed to stay in the country for a few more months or years. But you need proper legal guidance and support to change the outcome of your situation if you face deportation.
The immigration officials are generally very busy. Thus, they can unlikely make follow-ups to ensure that every immigrant leaves the country by the end of their approved stay period. The law requires you to do the right thing to make the work of the immigration department easier. But it does not always work like that. If you commit a crime or someone calls the immigration department on you, you could be apprehended for removal once the department realizes that you have overstayed your visa. Thus, it would be best if you went through the removal proceeding.
You are required to attend a hearing, after which a judge will determine the outcome of your situation. You can use several defense strategies to fight your deportation, including requesting the court for relief from removal. If the judge grants your request, you will not be deported and can remain in the country for another time given by the immigration. But if you do not fight your deportation or are not successful, you will be ordered to leave the country immediately and could be barred from returning for several years or life.
You Trigger a Consular Shopping Bar
Overstaying your visa will automatically trigger a shopping bar even by a few hours. It is under the Immigration & Nationality Code Section 222(g). The law states that any person that remains in the United States beyond their time of authorized stay could have their visa canceled. It renders their visa invalid, meaning your continued stay will be illegal. Once the cancellation occurs, you can only make another visa application at a United States consulate in your country. Otherwise, your continued stay will bring more trouble than good.
Before the enactment of this law, foreign nationals that overstayed their visas only went to their respective consulates in the United States to make another application for a new visa or an extension of their visa. Today, this is not allowed. You must return to your country to make another visa application if you wish to stay longer.
Note that if you requested an extended period of stay and the USCIS denied it, you would not automatically trigger the shopping bar. But, you must demonstrate a good reason for applying for an extension. Your visa could be canceled if the grounds for your request for an extension are frivolous.
Before the immigration department cancels your visa, they will send you a notice of their intention to consider canceling your visa. You must respond to this with a compelling reason why they should not cancel your visa.
It is advisable to seek the help and guidance of a skilled immigration attorney at this point. Immigration attorneys understand immigration regulations and can access the department's internal policies. Thus, your attorney can help you understand your situation and options. Your attorney can also help you come up with valid reasons, arguments, and strategies to avoid visa cancellation.
You Could Face Challenges Adjusting Your Status
If you come to the United States as a visitor or for temporary employment and would like to continue living or working here, you must adjust your immigration status before the end of your period of stay. Once you start living here, you will realize the several opportunities you have of adjusting your status so that you will not be in a hurry to leave once your visa expires. For instance, you can easily qualify for a green card, a visa that allows you to live and work in the United States. But, you must meet some conditions as provided by the immigration department.
If you marry a citizen of the United States or receive a job proposal from an employer in the United States and were only visiting the country using a nonimmigrant visa, you could qualify for a green card. In this case, completing your paperwork is easier and more convenient while still in the United States and not after you have left. That process is called a status adjustment. It is a legal process that will ensure your stay in the country, even after the expiration of your nonimmigrant visa, is permitted.
Remember that you qualify to use this process if you entered the United States legally, with permission, and after the inspection of the border agents. You must also be using a valid visa when applying for status adjustment. That is why you could face challenges if you have overstayed your visa.
Once you overstay your visa and the immigration department cancels it, it will no longer be valid, and your stay in the country will be illegal. It means that you will be ineligible to make an application for status adjustment.
All is not lost, though. You can still apply for a green card from your country of nationality. It would be best to leave the United States to use a consular process. But it can be a bit complicated because you overstayed your visa.
You Could Trigger Inadmissibility Bar for Unlawful Presence
If you overstay your visa by at least 180 days, you will automatically trigger an inadmissibility bar for unlawful presence. The immigration law provides that anyone who continuously stays in the United States without a valid visa for 180 days and one year and then leaves could be barred from ever returning to the country for three years. Additionally, if you overstay your visa for one or more years and leave, you will be marked inadmissible for ten years.
However, this does not affect all people. First, the law did not go into effect until 1st April 1997. Anyone who overstayed their visa before that date is not affected. Also, the bar will not affect nonimmigrants who overstayed their visa while still minors. Remember that the law only applies to nonimmigrants who continuously overstayed their visa for a specified period. Overstaying your visa a few months here and there will not count under the law, as long as none of those overstays lasted for at least 180 days.
Fortunately, waivers are available for those affected by the inadmissibility bar. This is especially beneficial to those married to or are children of permanent residents or citizens of the United States. In this case, you can ask for a waiver. Note that you will require legal help for these, as these waivers are challenging to obtain.
To be considered for a waiver, you must demonstrate that your spouse or parent (a U.S citizen or permanent resident) will suffer extreme hardship if you do not get a visa. By extreme hardship, the immigration department means that your partner or parent will be highly affected living thousands of miles away from you. It could be that they have a medical condition that requires constant attention or are likely to suffer financial hardship in your absence. Simply stating that your spouse or parent will be unfortunate without you will not grant you that waiver.
Steps To Take When You Overstay Your Visa
The consequences of overstaying your visa are grave. Your overstay can affect any plans to return to the United States. But, you can mitigate your problem and possibly improve the outcome of your situation if you follow these steps. Remember, there is no guarantee you will not face any of the penalties listed above. But it helps to know that you can do something to improve your chances:
Hire a Skilled Immigration Attorney
Immigration attorneys are experts on immigration law. They know more than you can about immigration law and what happens within the immigration department. They also represent individuals before USCIS, Immigration Courts, and the Board of Immigration Appeals. Thus, having an attorney by your side means you will have the legal support, advice, and help you need to face the penalties you will likely face for overstaying your visa. For instance, your attorney will study the details of your situation to advise you and devise a way forward. Your attorney will quickly make decisions that could bring a better outcome for your case.
Determine If You Are Eligible for a Waiver
USCIS extends waivers to nonimmigrants who can provide a good reason why they overstayed their visa. Your attorney can help you determine your eligibility for a waiver. If you qualify for one, your attorney will help you apply for a waiver and represent you during the proceedings.
Keep Your Criminal Record Clean
The immigration department will not hesitate to arrest, deport and mark you inadmissible if you commit a crime while living on a temporary visa. It will be worse if USCIS realizes that you overstayed your visa. In that case, you could face a permanent ban from entering the United States. That would be a massive blow for you and your loved ones already living in the United States. You could be safer if you kept your criminal record clean for that period. You could be considered for a waiver if the immigration department realizes that you have been good throughout your stay.
Be Patient
The immigration department is always overwhelmed with various applications and petitions. Thus, your application for a waiver or status change could take time before approval. It would be best if you remain patient until your paperwork is reviewed.
Find a Competent Los Angeles Immigration Attorney Near Me
Have you overstayed your visa in California and are wondering what steps you must take to avoid facing the severe consequences of immigration law?
A competent immigration attorney can help you. Your attorney will review your situation to advise you on your options and the proper steps. We walk our clients through all legal processes at California Immigration Attorney until they obtain a fair outcome for their situations. Call us at 424-789-8809 for more information and legal support during the most challenging period of your life.