Whenever someone enters the United States on a visa (or using the Visa Waiver Program), that person is given a date by which he or she must leave. For some visitors, such as tourists and seasonal workers, the required departure date may be a few months away. For others, such as students or workers, it may be several years away. If your departure day passes, and you overstay your visa, you're in the United States unlawfully.
There's not much difference under U.S. immigration law between someone who enters unlawfully, without a visa, and someone who stays past the time permitted. When you overstay, you become what's called "out of status." If immigration officials catch up with you, will will likely be removed, and face further consequences.
This article will help you understand when your permitted stay expires and the consequences of being in the U.S. without immigration status.
U.S. Immigration Officials Decide How Long You Can Stay
Your visa is merely an entry document; it doesn't state how long you can stay in the United States. Technically speaking, a visa allows you only to travel from your own country to a port of entry in the United States.
When you arrive at the port of entry, a Customs and Border Patrol (CBP) officer decides whether to allow you to come into the country and if so, how long you can stay. It's possible that the officer could turn you away. The officer makes the final decision.
Your "Out-of-Status" Date Is Not Shown on Your Visa
When the CBP officer allows you to enter the United States, he or she will either give you a second card to keep with your visa, called a Form I-94, or more likely, will simply enter the information into a computer database.
Your Form I-94 is what actually determines how long you can legally stay in the country. The date on your visa (which may be several years away) only tells you how long you can use it to arrive in the United States.
If you didn't receive a physical I-94 card, you can download and print out the relevant information, including your out-of-status date, from the Arrival/Departure Forms: I-94 and I-94W page of the U.S. Customs and Border Protection website.
If you came to the U.S. on an F-1 student visa, your I-94 will not have an actual date, but will say "D/S" for duration of status. That means that you are allowed to stay in the United States for as long as it takes you to complete your studies (assuming that you maintain a full-time course load and otherwise comply with the terms of your status during that time).
Consequences of an Overstay
If you stay past the date on your Form I-94 or the end of your studies on an F-1, you're in the country illegally. This carries serious consequences.
For starters, your visa is automatically cancelled. So even if it was a multiple entry visa, you cannot use it to enter the United States again. Your overstaying is also likely to prevent you from getting another visa in the future.
You're also accruing what is known, in legal terms, as "unlawful presence" in the United States. A period of 180 days or more of unlawful presence makes you "inadmissible" to the United States. That means that you will not be granted a visa, green card (lawful permanent residence), or other immigration benefit for a period of either three or ten years, depending on how long you overstayed. An overstay of between 180 and 365 days results in a three-year bar on reentry; an overstay of over 365 days results in a ten-year bar on reentry.
You may, under certain circumstances (usually if you have close family in the U.S. who would experience extreme hardship were you denied the visa or green card) seek a waiver of this ground of inadmissibility.
You Have Options Before You Overstay
Before your Form I-94 expires, there are steps you can likely take if you know you're not going to be able to leave the country by the appropriate date. You can potentially submit a request to U.S. Citizenship and Immigration Services asking for an extension. Once that request is in, you are allowed to stay until receiving a decision.
Such a request is, in most cases (such as B-2 visas for visitors for pleasure), done using USCIS Form I-539. However, the exact requirements and procedures vary depending on what type of visa you have. If, for example, you're on a work visa, then your employer will need to be part of requesting the extension.
If the extension is denied, you must leave right away.
If your Form I-94 has already expired, you should speak to an attorney as soon as possible. The more quickly you act, the more options you may have.
Questions for Your Immigration Lawyer
- Are extensions of my type of visa allowed? Under what circumstances?
- I overstayed a visa and married a U.S. citizen. Can I successfully apply for a green card?
- I've been called to immigration court because of being in the U.S. unlawfully after an overstay. How should I handle this?
- I've already gotten one visa extension. Can I get another?