HAVE YOU OVERSTAYED YOUR VISAS IN U.S.?
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What You Need to Know about Overstaying Your Visa
It is common for foreign nationals that have entered the U.S. to overstay the time allotted according to their visa restrictions. If this has happened to you, there are a few consequences/penalties, depending on the circumstances.
It is essential to deal with this situation without delay, as you might have options.
4 Main Consequences of Overstaying a U.S. Visa
Overstays may be barred from returning to the U.S. for 3 or 10 years, depending on the period overstayed
Overstays may be further restricted from an Extension of Stay or Change of Status
Overstaying will void your existing visa
Overstays generally are unable to obtain a new visa except in their country of nationality
Consequence #1: Inadmissibility
The Three Year Bar: Persons who remain in the U.S. after their authorized stay has expired for more than 180 days but less than one year, and who leave the U.S. prior to the institution of removal proceedings, are barred from reentering the US for three years from their date of departure
The Ten Year Bar: Persons who remain in the U.S. after their authorized stay has expired for more than one year, and who leave the U.S. prior to the institution of removal proceedings, are barred from reentering the U.S. for ten years from their date of departure.
Consequence #2: Bar to Change of Status/Extension of Stay
Persons who remain in the U.S. after their authorized period of stay are not able to extend their stay in the U.S. or change their status to another non-immigrant status. In most cases they are also barred from adjusting their status from that of a non-immigrant to that of an immigrant.
However, the USCIS stated that as long as a foreign national files for an Extension of Stay or Change of Status or Adjustment of Status before the period of authorized stay expires, the foreign national will be considered to be maintaining status until a decision is made on the application or petition, even if the decision is after the date on the I-94 expires.
Consequence #3: Visa Voidance
The visa of any foreign national that overstays their period of stay is automatically voided. Immigration is very strict in its interpretation and application of this provision – overstaying by even a day will void your existing visa. A foreign national who has overstayed a visa may not be readmitted unless they have obtained a new nonimmigrant visa in their country of nationality.
Consequence #4: No Consulate Shopping
The law provides that any foreign national who has stayed beyond his period of authorized stay in the U.S. must return to his country of nationality to obtain a new visa. You may no longer apply at a consulate that is ‘more convenient’ or closer to the U.S. If there is no consulate in your home country of nationality which issues visas, the Secretary of State may designate a third country where those individuals can apply for a new visa.
Exception to this Consequence
There is a narrow exception to this rule. If the foreign national can show that ‘extraordinary circumstances’ exist, they may be allowed to apply for a visa at a Consulate in a third country, i.e., a country that is not their country of nationality. Any person wanting to take advantage of this exception must receive the consent of the third country Consulate before making an appointment and submitting a nonimmigrant visa application.
How a Waiver Can Help an Overstay Case
If you have overstayed your visa, you may be eligible for a waiver, which would mean you could avoid the three or ten year bar.
Waivers for Non-immigrants