Overstaying a Temporary U.S. Visa

Overstaying a Temporary U.S. Visa

If you have a U.S. visa and you’re drawing closer to the expected departure date, you may be wondering, “What will happen to me if I overstay my temporary U.S. visa?” While tempting, overstaying your U.S. visa is not recommended as you could be in for some serious consequences.

For instance, once the expected departure date arrives, your visa will be voided automatically; you will not be able to go to a consulate outside of your home country and apply for a new visa.

As a matter of fact, it is possible that you will forbidden from returning to the U.S. for 3 or 10 years, depending on how long you stayed in the U.S. when you weren’t supposed to be here, whether an exception applied to your situation, and whether you gained the title of “unlawful presence,” which is clearly defined under U.S. immigration law.

When is your departure date?

A lot of people run into confusion about their departure date, which is NOT the same as the expiration date on a visa. The expiration date on a visa is the last day that someone can use their visa to enter the United States.

So, to find your actual departure date, you must look to your Form I-94 Arrival/Departure Record. Did you come to the U.S. as a student? If so, your I-94 should say “D/S”, which is short for duration of status. Meaning, you would be overstaying your visa when you either stop studying, or when you no longer comply with the terms set forth in your visa.

Generally, students do not accrue unlawful presence unless an immigration judge or official has determined that the student is unlawfully present in the U.S.

Accruing Unlawful Presence

If you fit into any of the following categories, you should not accrue unlawful presence and be subject to the 3 and 10 year time bars:

  • You were a minor (under the age of 18),
  • You applied for asylum with USCIS,
  • You were a battered spouse or child who came to the U.S. on a nonimmigrant visa and the abuse had to do with the overstay,
  • You were a victim of human trafficking, which was one of the reasons for your overstay, or
  • You were protected under Temporary Protected Status, Deferred Action, Deferred Enforced Departure, or Withholding of Removal under the Convention Against Torture.

If you do not fit in any of the above categories and you overstay your visa, it is likely that you will accrue unlawful presence, which can be used against you.

Under U.S. immigration law, there are three levels of penalties for people who overstay their U.S. visa and accrue unlawful presence, which lead to them being banned for a certain period of time, if not permanently.

  • Overstaying your visa for 180 to 364 days can bar you from reentering the U.S. for three years.
  • Accruing unlawful presence for over 365 days will result in being barred from the U.S. for ten years.
  • If you accrue unlawful presence for more than one year (combined, not necessarily for one continuous year), you could be removed from the U.S. and if you attempt to enter illegally, you could be permanently barred. However, if you wait ten years, you can request permission to apply for a green card or a U.S. visa.

If your departure date is coming up and you wish to stay in the U.S. legally, or if you want to return to the U.S. in the near future, you should contact a Plano immigration lawyer from our firm as soon as possible.