Overstaying on a US Visa: Actions & Consequences

What does it mean to overstay a visa?

An overstay of a visa means that an individual entered the US legally on a valid visa but then failed to leave the country once their visa came to an end. When you receive a temporary visa to come to the US such as the K1 Fiance Visa or the B2 Tourist Visitor Visa, its expiration date explains how long you are allowed to stay in the country. All non-immigrant visas have expiration dates and you are obliged to leave the US by that date.

Sometimes, however, foreign citizens stay in the country longer. If that happens, they can face one of the four main consequences of overstaying a US visa:

• Be barred from coming back to the US for 3 to 10 years, depending on how long they overstayed
  Not be able to apply for Extension of Stay, Change of Status, or Extension of Status
• Have their existing visa revoked
• Not be able to obtain a new visa to the US in the future.

If you have overstayed your US visa and you want to find out what you should do now, talk to our expert immigration lawyers.

Time bars for overstaying a US visa

Depending on how long you overstayed a US visa, you might be banned from reentering the US for:

• A period of three years – if you stay in the country for more than 180 continuous days but less than one year past your visa’s expiry date and you leave before formal deportation procedures are initiated
• A period of ten years – if you overstay your US visa for more than 365 continuous days and leave before official removal procedures against you begin
• A lifetime – if you stay in the US for more than one year after your visa expired or if deportation procedures against you begin, and then you attempt to reenter the US illegally.

Luckily, it is possible to apply for a waiver of the three and ten-year bars. To receive a waiver you have to prove that if you do not receive the waiver and the visa, your spouse or parents who are US citizens or lawful permanent residents will suffer medical, financial, or psychological hardship.

Bar to Change of Status or Extension of Stay

If you would like to extend your stay in the US or change your immigration status from non-immigrant to immigrant, you need to fill in the application and submit it to USCIS before your existing visa expires. If you overstay your US visa, you might be restricted from applying for it even if you meet the eligibility criteria.

If you failed to apply for Extension of Status, Change of Status or Adjustment of Status on time because of an emergency situation, you might still be able to maintain your status in the US. Nevertheless, you will have to be able to prove that an illness or other serious event prevented you from applying before the expiry date of your US visa.

Cancellation of the existing US visa

If you overstay your US visa, it will automatically be revoked. No matter how long your existing visa is valid for, if you stay even one day past its expiry date, the immigration officials will void it immediately.

When that happens, you will have to leave the US, come back to your home country and obtain a new non-immigrant visa there before you will be able to come back to the US. Sometimes, however, you might be refused new US visas, depending on how long you overstayed.

Problems with applying for US visas in the future

If your visa overstay in the US was shorter than 180 days, you will be able to apply for US visas in the future. You can also apply for a US green card if you meet the eligibility criteria.

Nevertheless, if you want to receive another temporary US visa, you will have to convince immigration officials that you intend to leave the country once your visa expires. If you have violated the conditions of your visa in the past by, for example, overstaying it, it is likely that the process of receiving a new visa will be challenging.

Circumstances where an overstay will not be held against you

In some exceptional circumstances, individuals who overstayed their US visas will not be subject to three or ten-year bars. That can happen when they:

• Were younger than 18 years old when the overstay happened
• Were waiting for USCIS’ decision regarding their asylum application
• Were waiting for the approval of their application for Extension of Status, Change of Status or Adjustment of Status
• Overstayed their visa as a result of repeated violence by their US spouse or parent
• Were a victim of human trafficking.

If you belong to one of these categories, your visa overstay will not be held against you. If, however, a permanent bar has been imposed on you, no exceptions can be applied.