Visa Overstays FAQs

Foreign nationals who have entered the US legally, for various reasons often overstay the period allotted by their visa for them to remain in the US. They are, to use the jargon, “overstays”.

What is the “time allotted” for your stay at the time of inspection and admission and where can I find it?

The time period allotted to remain in the US for a foreign national legally coming into the US is usually shown in the passport itself. It may also be in a sticker or other document attached to the passport. The class of admission of the admittee is also shown, (visitor, work, education, etc.); generally as a stamp in the passport placed there at the time of original inspection and admission.

Some classes of original admission themselves also have restrictions against applying for adjustment of status to permanent resident, (“greencard” holder). Read yours carefully or send us a copy for review at no cost

For our purposes here we will assume that a foreign national has legally entered the US under some of many possible status’ but has stayed, without extension or other permission, beyond the period of stay in the US they were first allowed when entering.

If you have overstayed your travel/ visitor, fiance, work visa or other entry documents, regardless of type, you may have a number of penalties or consequences resulting from this overstay and Amerilawgroup may be able to help you with them. We have set out here information regarding some of these issues. Each person’s case is unique and may have issues other than those discussed here. Amerilawgroup is happy to discuss the details of your case in our initial free consultation.

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Amerilawgroup, Attorneys at Law.

Lets suppose Lola, a foreign national, comes to the US to visit friends and see the sites on a visitor’s visa (or some other legal work, school, etc. entry document she may have been granted). Suppose, upon entry she is given a date to return home in the I-94 document or stamp in her passport which is 3 months from her date of entry into the US. While visiting she meets Jim, a US citizen. They date during the 3 months Lola has been allowed, like each other a lot, but are not ready to marry. Lola decides to stay in the US past her “go home” or “return date” to see how things develop with Jim. She Overstays her 3 month visa, continues to date Jim, and they do eventually get legally married in the US some time in the future.

She is a visa Overstay; and is subject to removal at any time by ICE or other government agencies

At this time there is not an active government program to search out and deport persons who have overstayed and who have not committed criminal offenses. If Lola has committed a criminal offense during her stay in the US a different set of rules regarding removal and deportation apply, (or just an unlucky “tail light out” traffic stop may produce a computer check showing her current overstayed status; this starts the removal process, in most cases. Also, the vigorous prosecution of all visa overstays has been proposed by the current administration in Washington.

The first consideration for Lola is to determine how long she has overstayed in the US past the return date given her when she first legally entered; her “period of Overstay”

If Lola now leaves the US she would be subject to a lengthy bar imposed by the immigration service before she can even apply to return.

The basic rule is that if the overstay is for more than 180 days, but less than a year, then the bar is for 3 years; and if the overstay is for more than 1 year the bar is for 10 years. Both of these times assume Lola has voluntarily left the US and has not been in removal by the immigration service, in which case some other technical rules can apply. They also assume that Lola’s last entry into the US was a legal one; if she entered illegally then other rules also apply.

The best rule in this situation is… IF YOU ARE OVERSTAYED FOR ANY PERIOD OF TIME DO NOT LEAVE THE U.S. FOR ANY REASON AND IMMEDIATELY CONSULT AN IMMIGRATION ATTORNEY TO REVIEW YOUR OPTIONS…TIME MATTERS!

However, if you were overstayed but are now out of the US and are subject to the bar of 3 or 10 years you still may be able to obtain a waiver of these bars in some cases;…see the information below then consult an immigration attorney.

Just marrying Jim does not change her overstayed status and she is still subject to removal from the US and the bars of 3 and 10 years from returning when and if she is removed.

However, Lola has legally married Jim and as the spouse of a US citizen she has a whole new set of options. Because Lola’s initial entry into the US was a legal one, even though she then overstayed, she can still be sponsored by Jim to become a permanent resident of the US with a “green card”. As a permanent resident she can stay in the US, travel outside the US and return, and work in the US.

Keep in mind however, that just marrying Jim does not make Lola a permanent resident. Jim must file a Petition for her to become a legal, permanent resident (generally referred to as a PETITION FOR ALIEN RELATIVE, or as an “I-130 Petition) and Lola must at the same time apply for adjustment of status to change her status from, (in our example) overstayed visitor visa holder to that of a permanent resident, (known as an ADJUSTMENT OF STATUS APPLICATION, or I-485 application). This process may take 6 months +/-, so if Lola wants to work or travel outside the US while waiting for the green card she must apply for temporary work and travel permits (advance parole), Amerilawgroup can obtain these temporary permits for you without any additional legal costs or USCIS filing fees, usually in about 6-8 weeks from application and filing…be sure and ask us how.

Lola may remain legally in the US from the time of her and Jim’s Petition (I-130) and application (I-485) until a decision is made by the USCIS. If they are both approved she is given her green card. If denied she is ordered to leave the US…obviously you want to make sure these filings, and all the required supporting documents, are done properly and correctly, the first time. What is meant by “properly done” varies based on the specific facts of each case. We are happy to discuss the facts of your case.

Keep in mind however, that persons who have overstayed their visa cannot extend their visa or apply for adjustment of status / green card by themselves. In our example, the application for permanent resident status / green card (I-485) by Lola must be filed along with or after the PETITION FOR ALIEN RELATIVE / I-130 PETITION filed by Jim as Lola’s sponsor. Note however, that certain types of work or study status may allow a person to apply for permanent residency / green card without a marriage relationship…we will be happy to explain this to you in our initial, free consultation. Further, the USCIS’s policy at this time in many cases is to allow foreign nationals to file for an Extension of Stay, or Change status by Adjustment of Status, if their current visa has not expired. In this situation the potential immigrant will maintain their current “in status” status until the decision is made on their application. This is true even for decision dates beyond the expiration of the visa…however, these can lead to complicated fact situation requiring careful analysis.

Yes, for example persons who are outside the US may want to apply for admission to the US for a variety of reasons and may want to make application for entry at a US consulate or Embassy other than one in their home country, (country of nationality); these may include convenience of location to the place they are currently living, reputation of a given consulate or embassy for being tougher or more lenient to applicants, stated application processing times, attitude toward applicants with certain historic “record” problems (criminal record, medical history, etc.) and many others. In short, it may often increase the likelihood of acceptance and reduce the time to process the visa, if the applicant engages in CONSULATE SHOPPING. However, if Lola has overstayed her visa by even one day she cannot consulate shop, but must make application to a consulate or embassy in her country of origin (country of birth).

Note, however, that in the situation where the country of origin does not have US consulates or an embassy then a visa may then be applied for in a country designated by the US Secretary of State.

It is also worthwhile knowing that under “extraordinary circumstances” an overstaying applicant may apply in a country other than that of origin. Establishing these extraordinary circumstances requires knowledge and skill in immigration issues beyond that of most people and the advice and services of an attorney is often required to assure prompt processing and a successful result.

Yes, there are waivers of these bars available in a number of circumstances.

Suppose Lola was the spouse, son or daughter of a US citizen or permanent resident. Suppose also that Lola, for various reasons, is subject to a 3 or 10 year bar. She could then apply for a specific waiver of the 3 or 10 year bars due to her relationship to her spouse or parent.

While the statute does provide a specific waiver for the three or ten year bar for persons who are the spouse, son or daughter of a U.S. citizen or permanent resident, waivers are available in a number of other circumstances as well which we will be happy to explain to you during an initial, free consultation.

It is tricky to obtain these waivers and they are not granted just for the asking. In order to obtain a waiver a person must demonstrate that the US citizen or permanent resident spouse, son or daughter will undergo “extreme hardship” if the applicant is not allowed to return.

“What is extreme hardship”? This can vary widely based on the individual circumstances of each case. There may be medical hardship, psychological hardship, combinations of these, or of many other factors which must be brought together to make a convincing case for waiver due to extreme hardship. Keep in mind that hardship, extreme or otherwise, to the person applying for the waiver does not count; it must be to the US citizen or permanent resident who is their relative.

WE WOULD BE HAPPY TO DISCUSS WITH YOU THE RIGHTS, OBLIGATIONS AND OPPORTUNITIES OF PERSONS WHO HAVE OVERSTAYED. THE ONES DISCUSSED ABOVE ARE ONLY A FEW AND MANY PROBLEMS CAN BE AVOIDED IF PROPERLY ADDRESSED.