Friday, December 24, 2010

I overstayed my Visa

Overstaying your time in the U.S. is no longer overlooked. The issue of overstaying while on a non-immigrant visa has been getting serious attention in recent years. However, much confusion still exists over the regulations relating to foreign nationals present in the U.S. beyond their authorized period of stay.

Prior to the passage of the 1996 reforms of the U.S. immigration law, persons who overstayed did not face huge consequences. Even though overstays were deportable and considered to be in the U.S. without legal status, they could still receive a number of immigration benefits. For example, overstays could still Adjust Status upon payment of a civil penalty, they were eligible to apply for Asylum, suspension of Deportation, voluntary departure, and were able in many cases to simply depart from the U.S. and renter.

However, in the 1996 reforms, the law relating to overstays was drastically changed. The impact of the new law on overstays is particularly harsh. Often foreign nationals who were otherwise eligible for further benefits, such as a work authorized non-immigrant visa or employment based immigrant visa, are denied the opportunities because of overstaying in the U.S.

An overstay could be any non-immigrant (B-2 visitor, F-1 student; H-4 spouse; visa waiver tourist, or persons in any other non-immigrant category) that stays beyond the time authorized at the time of entry or any extensions they receive. The law on overstays is different from the previous law in several significant ways:
An automated system, coupled with the use of Machine Readable Passports, will maintain entry and departure records of all persons coming to the U.S.

Overstays may be barred from returning to the U.S. for three years

Overstays may be barred from returning to the U.S. for ten years

Overstays may be further restricted from Extension of Stay or Change of Status

Overstaying will void your existing visa

Overstays generally are unable to obtain a new visa except in their country of nationality

Overstays may not be able to Adjust Status in the U.S.
Issues:

I.             Consequences of Overstaying
                 
               
1.            Inadmissibility as a consequence of Overstaying
                 
                The 1996 reform created two new grounds of inadmissibility for foreign nationals who remained in the U.S. after the expiration of the period of stay authorized by the Attorney General through the immigration inspector at the time of entry.
                 
               
a.           
The Three Year Bar: Persons who remain in the U.S. after their authorized stay has expired for more than 180 days but less than one year, and who leave the U.S. prior to the institution of removal proceedings, are barred from re-entering the U.S. for three years from their date of departure.

                 
               
b.            The Ten Year Bar: Persons who remain in the U.S. after their authorized stay has expired for more than one year, and who leave the U.S. prior to the institution of removal proceedings, are barred from re-entering the U.S. for ten years from their date of departure.
                 
               
2.            Bar to Change of Status and Extension of Stay as a consequence of Overstaying
                 
                Persons who remain in the U.S. after their authorized period of stay are not able to extend their stay in the U.S. or change their status to another non-immigrant status. In most cases they are also barred from adjusting their status from that of a nonimmigrant to that of an immigrant.

However, the USCIS stated that as long as a foreign national files for an Extension of Stay or Change of Status or Adjustment of Status before the period of authorized stay expires, the foreign national will be considered to be maintaining status until a decision is made on the application or petition, even if the decision is after the date on the I-94 expires.
                 
               
3.            Visa Voidance as a consequence of Overstaying
                 
                Another major change in the law affects your current visa. The visa of any foreign national that overstays their period of stay is voided. Immigration is very strict in its interpretation and application of this provision – overstaying by even a day will void your existing visa. A foreign national who has overstayed may not be readmitted unless they have obtained a new non-immigrant visa in their country of nationality.
                 
               
4.            No Consulate Shopping as a consequence of Overstaying
                 
                The new law provides that any foreign national who has stayed beyond his period of authorized stay in the U.S. must return to his country of nationality to obtain a new visa. You may no longer apply at a Consulate that is ‘more convenient’ or closer to the U.S. If there is no Consulate in your home country of nationality which issues visas, the Secretary of State may designate a third country where those individuals can apply for a new visa.

There is a narrow exception to this rule. If the foreign national can show that ‘extraordinary circumstances’ exist, they may be allowed to apply for a visa at a Consulate in a third country, i.e., a country that is not their country of nationality. Any person wanting to take advantage of this exception must receive the consent of the third country Consulate before making an appointment and submitting a non-immigrant visa application.


II.            Waiver of the Three or Ten Year Bar of Inadmissibility for Overstays
                 
               
1.            Non-immigrant’s
                 
                The 1996 reforms do not include a waiver of the three or ten year bar for non-immigrant’s. The immigration laws do not, however, preclude a non-immigrant from applying for a waiver under section 212(d)(3). Section 212(d)(3)makes available to non-immigrant’s a general waiver for most grounds of inadmissibility.
                 
               
2.            Immigrants
                 
                The statute does not provide a specific waiver for the three or ten year bar for foreign nationals who are the spouse, son or daughter of a U.S. citizen or permanent resident. The waiver is not available to foreign nationals who only have children who are U.S. citizens or permanent residents. To obtain the waiver the foreign national must show that their U.S. citizen or permanent resident spouse or parents will suffer ‘extreme hardship’ if the foreign national is not allowed to return to the U.S. ‘Extreme hardship’ to the foreign national himself is not recognized for the purposes of the waiver.


III.           How to avoid Overstaying and its Consequences
                 
               
1.            Check the expiration date on your I-94
                 
                You must leave the U.S. on or before the expiry of the authorized period of stay granted at admission or with any subsequent Extension of Stay or Change of Status, unless you file a timely, non-frivolous application for Extension of Stay, Change of Status or Adjustment of Status.
                 
               
2.            Make sure to document your departure
                 
                Get your passport stamped when you enter another country, save your airline tickets and/or boarding pass, save your travel itinerary etc.

Conclusion

The consequences of being found to have stayed beyond your period of authorized stay in the U.S. are numerous and harsh; from having to get a new visa to return, to facing a ten year bar from re-entering the country. It is just not worth the risk anymore to get in that extra day of vacation.

If you have questions regarding overstay and its consequences on your future travel to the U.S., consult a VisaPro attorney.