Can My U.S. Visa Overstay Be Forgiven?

The impact of an overstay in the United States, and whether it can be "forgiven" by U.S. immigration authorities, can be anything from catastrophic to minor. U.S. immigration laws definitely contain penalties for people who overstay a visa. The details depend on how long you stayed past the end of your permitted time, and what immigration benefit you are currently seeking.

Fortunately, certain relatives of U.S. citizens and lawful permanent residents can, in the process of applying for U.S. residence (a green card), ask the U.S. government for legal forgiveness or a waiver. This allows them to receive a U.S. green card despite the overstay. This article will discuss why needs this sort of waiver, and who is eligible to apply for it.

What Is an Overstay?

An "overstay" means that one entered the U.S. lawfully, most likely based on a visa or with a visa waiver, but then didn't leave on time. Don't look to your actual visa (the stamp in your passport) for the date, though. The required time by which someone must leave the United States is normally shown on a document called an I-94, which the U.S. border official creates upon the person's entry and is, for most people, available in an online CBP database. So, to calculate the length of your overstay, you'll need to count forward from the date on your I-94.

Many people confuse the I-94 expiration date with that shown on the visa itself. Bear in mind that a visa is solely an entry document. Its visa expiration date shows the period of time within which you can show up at a border or port and ask to enter the U.S., not how long you can stay in the United States after your entry.

If you entered the U.S. on a student visa, your I-94 will likely not contain a date, however. It will say "D/S," for duration of status. That means your overstay begins when you stop studying or complying with the terms of your visa. However, whether that overstay makes you inadmissible in the future depends on whether you actually accrued "unlawful presence," a separate legal definition. Students do not accrue unlawful presence until and unless an immigration official or judge has deemed them unlawfully present.

Automatic Visa Revocation After Overstay of Any Length

Even if you have stayed in the United States past the permitted departure date on your I-94 by one day—assuming you didn't file for a change or extension of status before the departure date—your U.S. visa will be automatically voided and cancelled. What's more, you won't be able to apply for a new visa at any U.S. consulate outside of your home country.

There is no waiver or forgiveness for this. But if you did, in fact, submit an application to USCIS for a change or extension of status before the departure date, and USCIS eventually grants it, none of your overstay will count against you.

On the other hand, if your request is ultimately denied by USCIS, you're out of luck—all time past the date you were supposed to depart will count against you, and potentially create problems later.

Overstay of Less Than 180 Days

If your overstay in the United States was for less than six months (180 days), then you are not legally inadmissible in the future. You can apply for and be granted another visa, or even a U.S. green card (lawful permanent residence) if you meet the eligibility requirements for one.

However, if you are applying for a temporary (nonimmigrant) U.S. visa, and it's one of the many that requires you to convince the U.S. consular official that you will leave the United States when your permitted stay is over, you might have a tough time making this showing if and when the consular officer becomes aware of your past overstay.

Overstay of More Than 180 Days

You will likely face severe penalties for overstaying a U.S. visa by more than six months, as described below. We're assuming that during your overstay, you were simultaneously accruing what's known as "unlawful presence." (But there are exceptions to this, described later) Here are the basic penalties:

• If you accrue unlawful presence in the U.S. of more than 180 continuous days but less than one year, and then leave before any official, formal removal proceedings (as in deportation) are instituted against you, you will be inadmissible—that is, barred from returning to the United States—for three years.
• If you accrue unlawful presence of more than 365 continuous days, then leave prior to any removal or other proceedings being instituted against you, you will be subsequently inadmissible and barred from returning to the United States for ten years.
• If you accrue unlawful presence of more than one year (in the aggregate, not necessarily continuously), or are ordered removed (deported) from the United States, and subsequently attempt to enter without inspection (for example, by being smuggled across the border), then you will be permanently barred from the U.S.—possibly for life, though you can actually request special permission to reapply for entry after ten years.

The key here is to understand that these consequences apply only if you depart the United States and attempt to return. In a few rare instances, people eligible for green cards can avoid such penalties by adjusting status within the U.S.—that is, submitting all their paperwork to U.S. Citizenship and Immigration Services (USCIS) and attending their interview within the United States.

However, you might not have a choice about whether to adjust status. Only limited categories of people are eligible to use this green-card application procedure. For example, people who entered the U.S. illegally (without a visa or other lawful admission) cannot adjust status (except in rare cases where old laws apply to them). Such people would, despite being technically eligible for a green card, have to apply for it through a U.S. consulate in their home country, which means departing the United States at some point to attend a consular interview, at which time the time bar penalties could be applied against them.

When an Overstay Won't Be Held Against You

You won't accrue unlawful presence for purposes of the three- and ten-year time bars described above if and when you:

• were under the age of 18
• had a bona fide pending asylum application on file with USCIS
• were a beneficiary of the Family Unity program (for close relatives of people who received green cards as farmworkers or under the amnesty program of the 1980s)
• had a pending application for either adjustment of status (a green card), an extension of status, or a change of status
• were a battered spouse or child who entered on a nonimmigrant visa and can show a connection between the abuse and the overstay
• were a victim of trafficking who can show that the trafficking was at least one central reason for the unlawful presence, or
• had received protection via Temporary Protected Status (TPS), Deferred Enforced Departure (DED), Deferred Action, or Withholding of Removal under the Convention Against Torture.

If you're not in one of these categories, it's likely that your unlawful presence and overstay can be held against you. And if you are subject to the permanent bar, USCIS argues that none of these exceptions apply. (Talk to a lawyer if you are in this situation, just in case the laws or policy change.)

Waiver of the Three- and Ten-Year Time Bars

A waiver is available to people who can demonstrate that if they are not granted the requested immigration benefit, such as a green card, their U.S. citizen or lawful permanent resident spouse or parents would suffer extreme hardship. (Unfortunately, U.S. citizen or lawful permanent children do not count as qualifying relatives for purposes of this waiver.)

But extreme hardship is notoriously difficult to prove. It means demonstrating more than the hardship that any family member would feel upon facing separation due to denial of a visa. You'd want to be able to show severe financial, emotional, or medical consequences to one of your U.S. family members.

To avoid facing a three or ten-year bar to return upon attending a visa interview at a U.S. consulate, green card applicants should see Staying in the U.S. With the I-601A Provisional Waiver of Inadmissibility.

Definitely get a lawyer's help if you're considering applying for one of these waivers. The lawyer can help assess whether your local consulate is likely to be sympathetic to your waiver request (some are more sympathetic than others), and help you gather documents and affidavits in support of your family's claim to extreme hardship.