Overview of a Visa Overstay
A visa overstay is an issue that’s probably unique to the United States. In other countries, if you get a 10-year visa, you can stay in that country for 10 years. In the United States when you get that 10-year visa or five-year visa, you’re given an amount of time that you can stay in the United States. It won’t be the full 10 years, but a specific amount of time. Some visas have duration of status, but the majority of them do not. The visitor visa, or the B-1/B-2, is probably the most commonly used. If you come to the US on a visitor visa, Customs and Border Protection (CBP) will give you between 15 days and six months. Once you go over the amount of time that the CBP officer gives you when you come in, you become an overstay. Overstaying your visa is just literally going over the amount of time that the CBP officer gives you. For example, if you’re on a visitor visa and are given 6 months, and you don’t apply for an extension, or apply for a change of status from one category to another, or leave the country, on the 181st day you are considered an overstay in the United States.
What happens if I do overstay my visa in the United States?
It really depends on what kind of classification you’re in. For example, I came here into the United States on a student visa. The great way that my school official actually explained it to me was to think of the visa as a bridge. You pay the toll at the beginning and then you won’t pay again until you try to exit. So, you don’t have to pay the toll again until you leave the country. A non-immigrant visa category means you don’t have the intent of coming to the United States and staying forever. If you overstay a non-immigrant visa, then you won’t be able to extend your visa again. If you stay here in the United States and you’re out of status, you cannot extend your visa. The government considers the visa as a privilege. If you overstayed your visa, the government will view it as you didn’t keep your word, so we’re not going to let you come back to the United States.
There are some exceptions. For example, we have the COVID-19 right now. If you can’t leave the country and you cannot afford to pay the government the $455 to extend it, then that will be considered an extenuating circumstance.
If you overstay and you’re moving from a non-immigrant visa to an immigrant visa, then the consequences are different. If you’re here in the United States and, for example, you get married to a US citizen, that US citizen can apply for a green card for you. The United States government kind of ignores the fact that you overstayed your visa, because they want the US citizen to have his family or her family in the United States for visa reunification purposes. If you are married to a green card holder, then you won’t be able to get a green card in the United States because you overstayed. You actually have to meet new status once you apply for that green card. The consequences really depend on what you are trying to do in the United States.
Can I adjust my status if I’ve overstayed my visa?
If you’re married to a green card holder or you’re trying to adjust status through an employer; which is what I did, you cannot be out of status or overstay your status for more than six months or you won’t get the green card. The consequences of overstaying your visa really depend on who the petitioner is. If you’re a US citizen it’s going to be okay, probably. If you’re a green card holder, you’re not going to be able to get it unless you qualify for an exception. If you’re getting your green card through an employer, then you have to be not out of status for more than six months.
How does the US know if I’ve overstayed a visa?
It depends on the kind of visa that you have. Most people who come in on a visitor visa, or a non-immigrant visa for example, get an I-94. A formal I-94 tells you when you have to leave the country. You also get a stamp on your passport saying you have to leave the country by this date. There is also a website for the I-94. You can go login with your passport and your name and actually get a copy of the I-94 if they don’t give you one. You have to either leave or apply for an extension of status by the date you are given. For example, if you come in on the Visa Waiver Program; in the old days they used to give you a different I-94 that was a different color. Now you can login online and also get the I-94 online to print and know when you have to leave this country.
If you come to the United States in a non-immigrant status, for example a B-1 visa, and you want to switch to a different status like an F1 visa, which is a student visa, as long as that visa process gets done in time or you apply before the expiration of your I-94, then you can remain here legally in the United States as long as the extension is actually pending in front of the government. If you went from B-1 to F1 or B-2 to an F1, or you go from the B-1/B-2 to an employer sponsored visa like an E2, they give you a new I-94 with a new date when you have to leave.
If you are on an F1 visa, then the extension is for duration of status. As long as your status is okay, you’re going to school, going to your classes, doing everything, you don’t get kicked out of the system, then you will be okay and you don’t have to leave the country, even though the old I-94 expired. As long as you’re in status for the duration of your bachelor’s degree or associate’s degree or whatever degree you’re getting you will be okay.
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