Overstaying your visa can significantly reduce your chances of changing or adjusting your status in the U.S. or abroad via consular processing.
However, not all is lost if you have intentionally or mistakenly missed the deadline to extend your status or leave the country. In the fiscal year 2020 alone - yes, thanks to the COVID pandemic - nearly half a million nonimmigrants overstayed their visas and many were granted what is called “overstay forgiveness” by immigration officials.
The first thing you need to know is the difference between the validity of your visa as indicated on your passport and the duration of stay you have been granted. If you have a 5-year tourist visa, for example, that means that on your passport, your tourist visa will be valid for 5 years and multiple entries. However, what determines the amount of time you can spend in the U.S. on this type of visa is your I-94 (to get a copy of your I-94 or check your travel history, go to: https://i94.cbp.dhs.gov/I94/#/home) not the visa information on your passport. If you are in the U.S. on a student visa, you are allowed to stay in the country for the duration of your status or for as long as your I-20 is valid. That’s why you will see a “D/S” on your I-94.
Once you overstay your visa, you start to accrue unlawful presence, meaning you have remained in the U.S. in violation of your visa terms and conditions. This is how the overstay clock and applicable penalties work:
Less than 180 days: if you overstay your visa for less than 180 days, certain grounds of inadmissibility may not apply if you show good cause.
More than 180 days but less than one year: under the rules for grounds of inadmissibility, you would be barred from obtaining a visa and returning to the U.S. for three years.
More than one year: under the rules for grounds of inadmissibility, you would be barred from obtaining a visa and returning to the U.S. for ten years.
More than one year and you attempt to re-enter without being admitted or paroled: under the rules for grounds of inadmissibility, you could be barred from obtaining a visa and returning to the U.S. permanently.
The easiest way to overcome having overstayed your visa is by becoming the immediate relative of a U.S. citizen, meaning, you would have to be the parent, spouse or child under the age of 21 of a USC. Immediate relatives can file a Petition for Alien Relative and adjust their status regardless of the length of their overstay.
Another successful way to reinstate lawful status is by acting fast and showing the immigration officer you overstayed your stay due to an unforeseen situation or an extreme hardship such as the recent pandemic, the sudden loss of a family member, ineffective assistance of counsel or material error by USCIS.
If you are unsure about whether you have overstayed a visa in the past or not, the first step is to submit a FOIA request and find out what if anything is on your records with the U.S. Department of Justice.
At Lear & Lear, our immigration attorneys can evaluate your situation to choose the best way to overcome your visa overstay and reinstate lawful status. Give us a call today at 384-334-4030 or schedule a consultation online at https://www.skvlegal.com/book-online to speak with one of our attorneys or paralegals. We offer consultations in English, Portuguese and Spanish.