. WHAT TO DO WHEN YOU’VE OVERSTAYED LEGAL STATUS IN THE UNITED STATES
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WHAT TO DO WHEN YOU’VE OVERSTAYED LEGAL STATUS IN THE UNITED STATES



All non-immigrant U.S. visas are issued for a specific period of time, based on the visa type.  The date by which a nonimmigrant must leave the US or adjust status is determined by the date the immigration officer sets on the I-94 Arrival/Departure Record, not by the date on the visa itself.  Once the authorized stay ends, if the non-immigrant does not adjust status to another visa or Green Card, he or she will need to depart the United States.  


Individuals commonly overstay their visa due to mistake, unforeseen circumstances, or choice.  However, maintaining physical presence in the United State without legal status can have serious legal consequences, including fines, bans on re-entry, and even deportation. If you have overstayed your visa, it is important to take the right steps to rectify your situation and minimize the impact on your ability to travel to the United States in the future. In this guide, we will walk you through what happens when you overstay, potential penalties, and the best steps to take to address the issue.


If you have entered the U.S. without inspection by a border officer, please see our blog, What to Do If you Entered the US Illegally. 


A. CONSEQUENCES OF OVERSTAYING A U.S. VISA


The penalties for overstaying a visa vary based on the length of the overstay, as discussed in detail below.


1. Overstay of Less than 180 Days (6 months)

  • You may accrue unlawful presence, but are generally not barred from returning to the United States in the future.

  • You could face difficulties when applying for future visas, as you have now shown that you have overstayed your visa in the past.

  • You may be required to apply for a waiver if seeking another US visa.


2. Overstay of More than 180 Days, but Less than One Year (6-12 months)

  • You will be subject to a three-year ban from reentering the US.

  • You may need to apply for a waiver if you wish to return sooner.


3. Overstay of One Year or More (12+ months)

  • You will be barred from reentering the US for ten years.

  • You may face significant difficulties obtaining any future US visa.


4. Immediate Consequences of Overstaying

  • Loss of Visa Validity: If you overstay your visa, it is automatically void.

  • Difficulties with Adjustment of Status: Those who overstay their authorized period of stay are generally ineligible to change or extend their status within the U.S., and will have to leave the country to apply for new status via consular processing.

  • Risk of Deportation: The U.S. government can initiate removal proceedings against visa those who overstay their status.


B. STEPS TO TAKE IF YOU HAVE OVERSTAYED YOUR VISA


If you realize you have overstayed your visa, here are the best steps to take to resolve your situation:


1. Assess the Length of Your Overstay

First, determine how long you have overstayed by checking your I-94 record online. If your overstay is minimal, you may have more options available to you.


2. Consult an Immigration Attorney

Before making any decisions, consult with a qualified immigration attorney. They can assess your situation and provide legal options, including:

  • Applying for a waiver;

  • Seeking an Adjustment of Status; or

  • Voluntary departure to avoid harsher penalties.


3. Consider Leaving the US Voluntarily

If you have overstayed but do not have a significant unlawful presence, leaving the US voluntarily before hitting the 180-day mark may help avoid re-entry bans.


4. Apply for a Waiver (If Eligible)

Certain individuals who have overstayed may be eligible for a waiver of inadmissibility that allows them to return sooner than the standard three- or ten-year ban. This complicated, time-consuming waiver will require you to provide evidence of the extreme hardship that your qualifying U.S. relative(s) would suffer an ‘extreme hardship’ if you were to be refused admission to the United States.


5. Explore Adjustment of Status Options

If you are eligible for a Green Card through family sponsorship, employment, or asylum, you may be able to adjust your status within the US, depending on the circumstances.


6. Prepare for Future Visa Applications

If you plan to apply for a future visa after overstaying, you must:

  • Be honest about your overstay in visa applications;

  • Show strong ties to your home country; and

Provide evidence of compliance with US immigration laws after your overstay.


C. SPECIAL CASES: EXCEPTIONS AND RELIEF OPTIONS


  1. DACA and Overstays

Those who arrived as minors may qualify for Deferred Action for Childhood Arrivals (DACA), which provides some relief from deportation.  If you are currently paroled on DACA, do not let your DACA status lapse!  The laws on DACA are the subject of much government debate, so be sure to check a reliable new source about any changes.


  1. Asylum Seekers

If you fear persecution in your home country, you may be eligible to apply for asylum, which could allow you to remain in the US legally.  In order to qualify for asylum, you must be able to demonstrate to an immigration judge that you have experienced past persecution and/or a well-founded fear of persecution in your home country due to your race, religion, nationality, membership in a particular social group, or political opinion.


  1. Marriage to a US Citizen

If you are married to a US citizen, you may be eligible for a Green Card through a family-based adjustment of status, even if you have overstayed.  Read about the 7 steps to obtaining a marriage-based Green Card here. 


  1. Parent of a U.S. Citizen Over the Age of 21

United States Citizens (USCs) aged 21 and over are eligible to submit a family-based petition for their parents. Parents of USCs are eligible if they have the required family relationship (for example, parent and son/daughter), and the family member has the immigration status required for the petition (for example, the son or daughter is a USC).  

However, if the parent entered the U.S. without inspection (i.e. crossed the border illegally), he or she would have to first obtain a waiver before departing the United States to finish step 2 of this process abroad at the consulate.  As this process is not without risk of being stuck outside the United States, consult with a qualified U.S. immigration attorney before initiating an application. 

If you have been present in the United States for more than 6 months without status, you could potentially trigger the 3- or 10- year bar when you leave the country. This is particularly important for those who will need to complete the process outside the United States, since these bars are only triggered when you depart the country.


  1. COVID-19 Considerations

During the COVID-19 pandemic, the US government provided some leniency for overstays due to travel restrictions. If your past overstay was due to pandemic-related issues, you may be able to explain this in future visa applications under limited circumstances.


D. HOW TO AVOID FUTURE OVERSTAYS


  1. Track Your Visa Expiration

Set reminders for your I-94 expiration date to ensure you leave on time or apply for an extension in advance.


  1. Apply for Extensions or Changes of Status Early

If you need more time in the US, file Form I-539 for an extension before your visa expires.  Start planning this at least six to twelve months in advance.


  1. Keep Records of Your Departure

Maintain copies of boarding passes and passport stamps to prove you left the US before your visa expired.


  1. Understand US Immigration Rules

Stay informed about visa regulations and reentry requirements to avoid accidental overstays.


E. FINAL THOUGHTS

Overstaying a US visa is a serious matter, but understanding your options can help you take the best course of action. Whether it involves leaving voluntarily, applying for a waiver, or seeking legal counsel, addressing the issue promptly is crucial. If you’re unsure of what to do next, consulting an immigration attorney is always the best step.

By taking a proactive approach, you can minimize the impact of an overstay and improve your chances of future travel to the United States.


To find out how we can help you achieve your American Dream of Legal Permanent Residency, and eventually U.S. citizenship, schedule a complimentary consultation with The Grady Firm’s attorneys by booking a call online, or calling +1 (949) 940-6725.

The Grady Firm has offices in Southern California, and its attorneys work remotely with clients from around the globe. 


*This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular case, as each case has its own set of circumstances and must be evaluated individually by and attorney and adjudicated by USCIS or the relevant consulate.



 
 
 
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