Unlawful Presence (Visa Overstay)

Staying past the expected departure date on your United States visa, commonly referred to as “overstaying” can have serious consequences.  If you overstay your visa you begin to accrue what is commonly referred to as “unlawful presence”.  The number of days you remain in the United States unlawfully, triggers certain bars to re-entering the United States when you depart, and can trigger 3-year, and 10-year bans from re-entering the United States.  It can also result in being placed in deportation proceedings.  For these reasons, it is never a good idea to overstay your visa.

Always check the expiration date on your I-94 arrival/departure record in your passport, and always document your departure to avoid issues in the future.

However, in limited circumstances you can still adjust status and apply for a green card, or seek a waiver of your unlawful presence.  Time is of the essence in how you proceed, as every day you overstay can detrimentally count against you, and especially if you plan to one day obtain a visa, green card, or even naturalization (citizenship) in the future.

The time bars generally work in the following three ways:

  1. Three Year Time Bar – If you accrue unlawful presence of more than 180 continuous days, but less than a year, and depart before any formal removal preceding’s (deportation) are initiated against you, you are barred from re-entry for a period of three years;
  2. Ten Year Time Bar – If you accrue unlawful presence of more than 365 continuous days, but less than a year, and depart before any formal removal preceding’s (deportation) are initiated against you, you are barred from re-entry for a period of ten years;
  3. Permanent Bar – If you accrue unlawful presence of more than 365 days, or are ordered removed (deported), and subsequently re-enter without inspection (such as sneaking back into the Country), you will be permanently barred from the United States, with no waiver available. You will have to wait 10 years and request special permission to apply for a visa or green card)

There are certain waivers available to waive the above time bars.  Amongst the specific criteria that must be evaluated there must be severe hardship, such as medical, financial, educational, and other factors, to a family member who is a United States citizen, or lawful permanent resident spouse.  Thus, even though you may have overstayed, there may still be hope.

You generally do not accrue unlawful presence when you:

  • Are under the age of 18;
  • Have a pending asylum application;
  • Were a beneficiary of the family united program (for families of people who received green cards as farmworkers or under the amnesty program of the 1980s);
  • Had a pending application for adjustment of status, an extension of status, or a change of status;
  • Were a battered spouse or child who entered on a nonimmigrant visa and can show connection between the abuse and overstay;
  • Were a victim of trafficking, who can show that the trafficking was at least one central reason for the unlawful presence; or
  • Have received protection via Temporary Protect Status, Deferred Enforced Departure, Deferred Action, or Withholding of Removal under the Convention against Torture.

Speak to a qualified immigration attorney at Shupe Dhawan to help you determine the best strategy based on your particular circumstances.

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Shupe Dhawan
200 SE 6th Street - Suite 601
Fort Lauderdale, Florida 33301
Call: (954) 507-7220

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