Everything You Need to Know About an Overstay Visa

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Atlanta Immigration Attorney Jameel Manji

Author: Jameel Manji, Founder, Manji Law, P.C.

Mr. Manji founded Manji Law in 2016 to follow his passion of helping people navigate the complicated immigration system. Mr. Manji graduated from Georgia State University College of Law and received Master of Taxation from the Georgia State’s J. Mack Robinson College of Business. Published on: November 01, 2023.

Manji Law is your complete immigration solution. If you are seeking assistance with the Atlanta Immigration Court, please give us a call. Manji Law can provide valuable insight, assistance, and a guiding hand to help you achieve your goals.

Visa Overstay Explained

Many foreign nationals come to the United States (U.S.) on a temporary visa. Some reasons for travel include tourism, schooling, visiting family, working, or getting married. A Customs and Border Protection (CBP) officer will issue you a Form I-94 (Arrival/Departure Record) at the port of entry. The record contains the time you are allowed to stay and the immigration status under which you were admitted.

It is not the expiration date on your visa that determines your authorized period but rather the date when your Form I-94 indicates you must leave the country. If you remain in the U.S. past the authorized date on your I-94, you will be overstaying your visa.

It is a serious offense to overstay your visa. It counts as unlawful presence and may result in re-entry bans and deportation. The best thing you can do if you overstayed your visa is to consult an immigration lawyer as soon as possible. An attorney can determine if any waivers are available to you based on your case.

As you read this guide, you’ll learn about visa overstays, their legal consequences, and how Manji Law can assist you.

Are There Valid Reasons for Visa Overstays

Sometimes, you may have valid reasons for overstaying your visa. In these situations, you will not accrue unlawful presence if you remain in the U.S. Some acceptable reasons for an overstayed visa include:

  • You are the abused nonimmigrant spouse or child of a U.S. citizen or lawful permanent resident and can show a connection between your abuse and the overstay.

  • You have a pending asylum application.

  • You have a pending green card, change of status, or extension of status application.

  • You are a victim of human trafficking and can prove that the trafficking is one of the reasons for your unlawful presence.

  • You were a minor (under eighteen) when you entered the United States.

  • You are a beneficiary of the Family Unity Program.

  • You are protected from deportation under the Convention against Torture, Temporary protected status, or deferred action.

Call us today for an evaluation of your case to determine if you are eligible for visa overstay forgiveness.

Consequences of Overstaying

Overstaying your visa is a violation of immigration laws. Some of the consequences of overstating your visa are discussed below.

Inadmissibility

You accrue unlawful presence when you remain in the U.S. longer than the authorized period. You may be barred from re-entering the US for:

  • Three-year bar: If you overstay for a period exceeding 180 days but less than one year after the authorized period expires.

  • Ten-year bar: If you overstay for a period exceeding one year after the authorized period of stay expires.

  • Permanent bar: If you re-enter or attempt to re-enter the U.S. after accumulating over one year of unlawful presence.

Bar to Change Status or Extend Stay

Remaining in the U.S. longer than the authorized period will affect your ability to extend your stay or change your status. In most situations, you will be ineligible for a green card or barred from adjusting your status in the United States.

If you apply to extend your stay or adjust your status before your current authorized period expires, you will be considered as maintaining status until a decision is made on your application.

This is true even if the U.S. Citizenship and Immigration Services (USCIS) decides the expiration of your authorized stay.

Voiding of Your Visa

If a visa holder overstays their existing visa, it will automatically be revoked or canceled. Consequently, you must apply for a new nonimmigrant visa in your country of origin. You will not be readmitted to the U.S. with your previous visa.

Deportation

Immigration authorities have several ways of tracking individuals who have overstayed their visas. If you have accumulated unlawful presence, you might be arrested by Immigrations and Customs Enforcement (ICE) at your home, workplace, or on the street. 

After your arrest, you will be placed in ICE custody pending deportation or an immigration court hearing. That is why it is essential to speak to a reliable immigration attorney immediately.

Are Short Overstays Permitted?

If you overstay your visa for less than 180 days, you won’t receive a re-entry ban from the same USCIS. However, your overstay will be on your record, and a CBP officer at a port of entry can deny you entry into the U.S. because of it. Additionally, overstaying your visa can affect your application for a new visa or green card. The USCIS may deny your application if they believe you will likely overstay again.

Are You Eligible for a Waiver of the Three or Ten Year Bar?

Under certain circumstances, you may be eligible for a waiver (visa overstay forgiveness). Form I-212 allows you to request a waiver for several grounds of inadmissibility. If you are granted a waiver, you can apply for a green card and remain in the U.S. after overstaying.

To obtain one, you need to submit several forms and documents, including a detailed explanation of your reasons for requesting the waiver. The burden of proof is on you to show valid reasons and exceptional circumstances for remaining beyond your authorized stay. The USCIS might consider a waiver if refusing the waiver will result in extreme hardship for a family member.

An immigration lawyer can determine if you qualify for a waiver. Since this process is expensive and time-consuming, it is essential to do it right the first time.

Can You Apply for an Adjustment of Status After Overstaying?

You can apply for a green card through INA 245(i) adjustment of status after overstaying a visa. However, you must be a U.S. citizen’s immediate relative (spouse, parent, or unmarried child under twenty-one). You must also have been lawfully admitted into the United States. Without lawful immigration status, you must return to your home country to apply through consular processing.

Are You Having Issues Because of a Visa Overstay? Contact a Skilled Immigration Attorney at Manji Law P.C.

You may be frustrated after finding out you overstayed your visa. It is even more confusing when deciding on the next steps to take. Leaving the United States without speaking to a lawyer can have serious consequences. Therefore, it is crucial to get legal counsel from a qualified immigration attorney before making any decisions.

At Manji Law P.C., we have the skills and experience to deal with various immigration issues. Our lawyers can review your case and the circumstances surrounding your overstay. After reviewing your case, we can guide you through your available options. If you qualify for a waiver, we can help you prepare and file the waiver request with the USCIS. We understand immigration laws and know what the USCIS looks for in a waiver application.

Our immigration lawyers can represent you in immigration court if you have been arrested by ICE officers and in various cases, including DUI deportation. We can help you avoid a long separation from your family by giving you the right advice and strong representation. Contact us today for more information.