Have You Overstayed Your Visa in the US?

There are many reasons why an individual could overstay their visa in the United States. Whether it’s done on accident or done intentionally, it’s important to obtain professional help* and complete the necessary steps to restore your status. An overstay is when you stay in the United States longer than your visa has allowed. All visas have expiration dates indicated on the I-94 Form, and you are expected to have left the United States by the time yours is set to expire. However, sometimes things happen and you are not able to leave the country when you should. Depending on the circumstances, in most cases, you will face consequences, and it’s important to know what to do next!

Overstayed US Visa Consequences

Consequence #1: Inadmissibility

The Three Year Bar: Those who remain in the US after their authorized stay has expired for more than 180 days but less than one year, and who leave the US 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: Those who remain in the US after their authorized stay has expired for more than one year, and who leave the US prior to the institution of removal proceedings, are barred from reentering the US for ten years from their date of departure.

Consequence #2: Bar to Change of Status/Extension of Stay

Persons who remain in the US after their authorized period of stay are not able to extend their stay in the US or change their status to another nonimmigrant status. In most cases, they are also barred from adjusting their status from that of a nonimmigrant to that of an immigrant. However, the USCIS stated that as long as a foreign national file 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 US 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 US 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

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 (a country that is not their country of nationality). Any individual 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.

Waivers

In some cases, nonimmigrants and immigrants are able to apply for a waiver to restore their overstay visa status:

Nonimmigrant Visas – While a nonimmigrant is not eligible to apply for a waiver for the three or ten-year bar, an individual would still be able to apply for a general waiver for most grounds of inadmissibility.

Immigrant Visas – The statute does provide a specific waiver for the three or ten-year bar for foreign nationals who are the spouse, or son or daughter of a US citizen, or permanent resident. The waiver is not available to foreign nationals who only have children who are U.S. citizens or permanent residents.

To obtain the waiver, the foreign national must show that their US citizen or permanent resident spouse or parents will suffer “extreme hardship” if the foreign national is not allowed to return to the US “extreme hardship” to the foreign national himself is not recognized for the purposes of the waiver.

How Long Can Canadians Stay In The US?

The period of time a Canadian can stay in the US is based on your unique case and whether you are entering on a visa or not. According to US immigration laws, a Canadian resident who is not a US citizen or a green card holder can stay in the US for no more than 6 months a year. The important thing to note here is that the year doesn’t mean a calendar year, but a 365 day period. Those from outside of Canada are allowed a maximum stay of 90 days.

The good news is, if you need to stay in the US longer than 6 months as a Canadian, you have the option to extend your stay! You can do this by filing a Form I-539, Application to Extend/Change Nonimmigrant Status before your authorized stay expires through the USCIS.

How VisaPlace Can Help!

Did you overstay your US visa? If so, Contact VisaPlace today. VisaPlace Legal [ULC] has helped thousands of individuals work through restoring their status after overstaying their visas in the United States. All our cases are handled by competent and experienced immigration professionals who are affiliated with VisaPlace. These professionals consist of lawyers, licensed paralegals, and consultants who work for VisaPlace Legal, an award-winning immigration firm that adheres to the highest standards of client service.

Ready for the next step? Book your 1 on 1 consultation now or call us at 1-888-317-5770.

*For US visa and immigration services, please visit our affiliate US Immigration law firm.