In 2019, over half a million nonimmigrants overstayed their visas, based on the Department of Homeland Security reports. If you remain in the United States past the expiration date of your issued Form I-94, this is what’s known as overstaying your visa. The consequence of doing so can be pretty serious including facing deportation and being barred from returning to the United States. Fortunately, there are valid reasons for visa overstays where immigration officials might grant visa overstay forgiveness. If you have overstayed your visa, it is imperative to be in communication with an experienced immigration lawyer to explore all of your options and avoid penalties or, worse yet, deportation.
Visa Overstay Forgiveness Overview
What does overstaying your visa mean?
When issued a visa, it shows the visa holder’s name, issue date, passport number, and expiration date. The expiration date listed on the visa itself is how long you can use it to enter the United States. The date is not when you need to exit the country. To avoid a visa overstay you must leave the country before the expiration date on your I-94. So that means you could have a valid visa for five years, but if the I-94 record shows a validity period of six months, you would need to leave the U.S. six months upon arrival. Unless you have filed for an extension of status or change of status by the first day after your indicated departure date, your visa will be automatically voided/canceled.
Unlawful Presence and Visa Overstay Forgiveness
Unlawful presence is “the period of time when you are in the United States without being admitted or paroled or when you are not in a period of stay authorized by the Secretary.” If possible, you should avoid accruing unlawful presence at all costs because it can lead to the government barring you from entering the country. For example, if you entered the U.S. without a valid visa or waiver, or border patrol did not inspect you upon entering, you are also unlawfully in the U.S.
Immigration officials maintain the right to bar your admission for three years if you leave the U.S. after accruing over 180 days of unlawful presence but less than one year during a single stay and before removal proceedings have begun. In addition, they can bar you for 10 years if you leave the U.S. after accruing more than one year of unlawful presence during a single stay (regardless of when you leave prior, during, or after removal proceedings have begun). Finally, USCIS can permanently bar you ” if you reenter or try to reenter the United States without being admitted or paroled after having accrued more than one year of unlawful presence in the aggregate during one or more stays in the United States.”
If you find yourself possibly facing unlawful presence, your next course of action should be to consult an immigration professional because you will probably get a three or ten-year bar when you return home and submit your green card application. In some situations, it may be your best option to adjust your status to circumvent penalties (you cannot file an adjustment of status though if you entered the United States illegally).
Special Conditions to Avoid Unlawful Presence
Valid Reasons for Overstaying Visa
Certain conditions allow you to bypass the unlawful presence issue. You won’t accrue it if during the period of overstay you:
- Were a minor (under age 18)
- Had a legitimate asylum application pending with USCIS
- Were the beneficiary of the Family Unity Program
- Had an application pending for an adjustment of green card, change of status, or extension of status
- Entered on a nonimmigrant visa and were the victim of domestic abuse or a battered child, and you can prove a connection between the period of overstay and the abuse
- Overstayed due to being a victim of human trafficking
- Received Temporary Protect Status (TPS), Deferred Enforced Departure (DED), Deferred Action or Withholding of Removal under the Convention Against Torture
Entering on a Student Visa
If you came into the United States on a student visa, the I-94 might say “D/S,” duration of holding status. In other words, the time you are studying as a student. When you stop being a student, then your overstay period begins. Unless an immigration official or judge makes the determination, however, students do not accrue unlawful presence.
Getting a Waiver from Being Barred
The government can bar individuals for violating specific immigration laws. Luckily, there are exceptions to these penalties if certain conditions exist and you can prove them. For example, a Waiver of Inadmissibility can help avoid an inadmissibility charge. Form I-601 is for individuals applying outside the U.S., while Form I-601A is for those applying in the U.S.
The following can file Form I-601:
- Immigrant visa applicants (or K or V visas) that are outside the U.S. and have previously had an interview with a consular officer in which they were found inadmissible
- Applicants seeking an adjustment of status to LPR (some exceptions apply)
- Those applying for Temporary Protected Status (TPS)
- Nicaraguan Adjustment and Central American Relief or under status as a Special Immigrant Juvenile (SIJ) adjustment of status applicants
- VAWA self-petitioners or children of a VAWA petitioner
- T nonimmigrant status adjustment of status applicants
The filing fee for Form I-601 is $930. It generally takes 4-6 months for Form I-601 to be approved.
The filing location for Form I-601 depends on your situation.
The following can file Form I-601A:
- You are in the United States
- At least 17 years old
- Have a pending immigrant visa case with the Department of State.
The filing fee for Form I-601A is $630. It generally takes 8.5-11.5 months for USCIS to approve Form I-601A.
Mail your Form I-601A to the Chicago Lockbox facility.
U.S. Postal Service (USPS):
P.O. Box 4599
Chicago, IL 60680-4599
FedEx, UPS, and DHL deliveries:
Attn: I-601A (Box 4599)
131 S. Dearborn, 3rd Floor
Chicago, IL 60603-5517
If the government grants you a waiver of grounds of inadmissibility it is valid indefinitely. This is true even if you do not obtain your immigrant visa, immigrant admission, adjustment of status, or if you lose your legal permanent resident (LPR) status.
Visa Overstay Waiver Frequently Asked Questions
What are bars to entry?
These are penalties given to individuals who spend a portion of time in the U.S. accruing unlawful presence. The three bars are the three-year bar, 10-year bar, and permanent bar.
What is considered overstay?
Staying past the expiration date on the Form I-94 is overstaying your visa. Please do not confuse this date with the expiration date listed on the visa itself. That date is how long you can use it to enter the U.S., not the date you need to exit the country. Unlawful presence starts accruing during the time frame a foreign national spends in the U.S. without first going through inspection and admission or parole or when your immigration status expired.
How do I obtain a waiver for a bar to reentry?
Review the section above regarding conditions that warrant a waiver of inadmissibility. The good news is that if the government grants the waiver, then it is valid indefinitely.
Can I get a green card if I came to the U.S. illegally?
If you entered the U.S. unlawfully, you cannot apply for a green card from inside the United States. Instead, you have to apply from your home country through consular processing. If you stayed in the U.S. illegally for less than 180 days, you will not be challenged with a reentry ban. Unfortunately, if you stay longer than 180 days, you will likely face a three or ten-year bar when you submit the green card application. If the latter describes your situation, it is essential to consult an immigration attorney.
Can my U.S. visa overstay be forgiven?
Yes, there are cases where the government will forgive your visa overstay, and you can obtain a waiver. You can bypass unlawful presence with the following conditions: being under 18 when the overstay occurred, having a legitimate asylum application for adjustment of status application pending with USCIS, being the beneficiary of the Family Unity Program, overstay due to human trafficking, and Received Temporary Protect Status (TPS), Deferred Enforced Departure (DED), Deferred Action or Withholding of Removal under the Convention Against Torture.
Who is eligible to adjust status even after a visa overstay?
Individuals who came to the U.S. legally and are applying for permanent residence as immediate relatives can apply for adjustments of status even with a visa overstay from within the United States using Form I-130 if filed concurrently with Form I-485, Application to Adjust status (plus supporting documents). If they overstayed their visa and then returned to their country to apply for a green card at a U.S. embassy or consulate, then the term used is consular processing. Other individuals eligible to adjust their status despite a visa overstay are those who had a petition or labor certification filed for them under law 245(i). Consult an immigration professional to learn what other scenarios warrant visa overstay forgiveness.
What are the consequences of overstaying my visa?
You can face removal proceedings (deportation), a 3-year bar, a 10-year bar, or a permanent bar depending on the amount of unlawful presence you have accrued and your conditions.
Am I able to leave the U.S. while my Gren Card is processing if I overstayed my original visa?
You can travel and leave the U.S. with Advance Parole, a travel document that grants you travel permissions without risking your green card application. USCIS allows you to apply for Advance Parole even if you overstayed your visa. However, be cautious because the law can change at any point.
How do I fix an overstayed visa?
The best course of action is to discuss your case with an immigration lawyer. They will be able to advise you whether you should return to your home country, apply for an adjustment of status within the United States, or another pathway to residency.
Can you be deported for overstaying your visa?
Should you overstay on your visa for more than six months or 180 days, you will likely face removal proceedings. In addition, you could get a three or ten-year bar when you try to submit your green card application.
My visa is nearing the expiration date. What should I do?
Give us a call to explore the best options before your visa expires. This will give us the best chance of securing a favorable outcome for your residency status.