Overcoming an Overstay in the United States
Overstaying a visa, either intentionally or unintentionally, is a common occurrence. Fortunately, it’s not the end of the world, and there are ways to obtain legal immigration status in the US even following an overstay.
Determining Your Period of StayOne point of potential confusion is the permitted period of stay. Non-immigrants need to carefully check their passport stamp or their current paper or electronic I-94 record to see how long they are allowed to stay in the United States.
For visa holders, the permitted period of stay is usually not the same as the term of the visa! For example, an E-1 or E-2 visa may be valid for 2 years and a B-1/B-2 visa may be valid for 10 years, but the permitted stay upon entry to the US may be less than one year.
Re-Entering After an OverstayA person who overstayed a visa, and then left the US voluntarily, will need to apply for a new visa to return to the US. Their existing visa will be invalid once they are overstaying.
Any person with a record of an overstay is ineligible for the Visa Waiver Program/ESTA. Even if they are a national of a country that is otherwise eligible, they will need a visa such as a B-1/B-2 visa to enter the United States.
If the overstay was for less than 180 days, the consular official has discretion to approve or reject the new visa. The main hurdle in this case is convincing the consular official that the applicant will comply with the terms of their new visa.
The 3 and 10-Year BarsOnce a person overstays for 180 days, they are not allowed to re-enter the US for three years after they voluntarily depart. Once they overstay for one year, they are not allowed to re-enter the US for ten years after they voluntarily depart. It is possible to apply for an immigrant visa notwithstanding the 3-year bar or 10-year bar in case of hardship to a spouse or parent who is a US citizen or green card holder. In these cases, the individual can apply for a waiver from USCIS and use that waiver to obtain an immigrant visa. This waiver is not available for the permanent bar. In addition, if applying for a non-immigrant visa, such as a B-1/B-2 visitor visa or E-1/E-2 treaty visa, the 3-year and 10-year bars can be waived at USCIS’s discretion for “humanitarian purposes,” “family unity,” or the “public interest.” These bars only apply to re-entry after a person has left the United States. Therefore, long-term overstayers face a difficult choice: either stay in the United States until they are removed or their status can be legally resolved, or leave the country and deal with the applicable time bar.
Removal: Permanent BarAny overstay can be the basis for removal (deportation) from the US. Once a person is removed, they are permanently barred from re-entering the US, and no waiver for spouse/parent hardship is available. A permanent bar also applies to an individual who accrues one year of unlawful presence and then attempts to re-enter the United States without inspection (i.e., sneaking across the border). There are very few waivers available for these bars.
Adjusting Status After an OverstayIt is possible to adjust one’s status and obtain a green card while overstaying in certain circumstances:
(1) Immediate relative (spouse/child/parent) of a US citizen. In this case lawful status is not required and the period of overstay does not matter, as long as the person was lawfully admitted to the US.
(2) Employment-based green card petitioners. In this case up to 180 days of overstay or unauthorized employment can be overlooked.
(3) Victims of domestic violence. In this case lawful status is not required and the period of overstay does not matter, and no lawful admission is required.
(4) “Grandfathered” immigrant petitions. Beneficiaries of certain immigrant petitions filed before April 30, 2001 can adjust status even while in violation of status.
(5) Discretionary waiver. The bars can be waived for adjustment of status at USCIS’s discretion for “humanitarian purposes,” “family unity,” or the “public interest.” For an adjustment of status, such a waiver is obtained by filing a Form I-690. This is a risky process because it means USCIS is notified of the overstay while the overstay is ongoing.