Overstaying Your Tourist Visa in the U.S.A.

JetBlue Check-inOverstaying Your Tourist Visa in the U.S.A.

Those coming to the United States as visitors to visit their families and friends, as tourists to see Mickey Mouse in Disney World, the White House, or the Empire State Building in New York City and the like, for medical treatment or to temporarily conduct business must obtain tourist/visitor visa (B-1 for business and B-2 for pleasure/medical treatment). These visas are consistently issued for 3 months to 10 years. Your visa represents only a permission to seek entry into the United States at any port of entry whether it is by land, air or sea. It is a “permission to seek entry”, because if you are not a U.S. citizen, customs and border protection officers may deny your entry into the U.S. even if you have a valid visa. Accordingly, a visa does not guarantee entry to the United States. Only the U.S. immigration officer has the authority to permit you to enter to the United States.

Your visa may be valid for several years; however the visa does not govern how long you can stay for any particular visit. Upon your arrival at a port of entry, the Customs and Border Protection official will determine the length of your stay in the U.S and stamp your travel document with the admission date, the class of admission, and the date that you are admitted until. Air and sea travelers to the United States no longer receive a paper Form I-94, Arrival/Departure Record, since April 2013. Rather, they are able to access their I-94 from the Customs and Border Protection website. Nevertheless Customs and Border Protection officials will keep issuing a paper Form I-94 at land border ports of entry. The date on your Form I-94 is the last day you are permitted to remain in the U.S. and it may not be valid for as long as your visa is valid. You must depart the U.S. by the date on your Form I-94, or you will have overstayed your visa and accrued unlawful presence.

What Happens If You Overstay Your Visa?

Many people overstay their visas simply because they neither do not understand nor know the difference between a visa and Form I-94 that governs the length of their stay in the United States and inadvertently end up overstaying; however you have to understand that overstaying your visa carries some serious consequences. If you overstay, meaning staying past the departure date shown on your Form I-94 Arrival/Departure Record, for 180 days or more but less than one year, and you leave before any official, formal removal procedures (i.e. deportation) are instituted against you, you will be barred from reentering the United States for a period of three years. If you overstay your visa and accrued unlawful presence of more than 365 continuous days, then leave prior to any deportation or other formal procedures being instituted against you, you will be subsequently barred from reentering the United States for a period of ten years.

If you, on the other hand, overstayed your visa for less than 180 days, then leaving the U.S. will not trigger any bars to your reentry. But keep in mind that if you have stayed past the permitted departure even by one day –let’s assume you have not file for a change or extension of status before the departure date- your visa will be automatically voided and cancelled. In addition, you will not be able to apply for a new visa at any consulate outside of your home country. You can ask for another visa or even a lawful permanent resident visa (green card), but depending upon how long you have overstayed, it might be very difficult for you to convince the Consular Officer as well as the Border and Customs Protection Officer that you will not overstay again.

Waiver of the Three- and Ten-Year Time Bars

A waiver ( a form of forgiveness) may be 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, fiancée or parents which referred to as “qualifying relatives”, would suffer extreme hardship. It should be noted that children of the noncitizen are not qualifying relatives for purposes of this waiver.

Even though, the statute and regulations do not provide a specific definition of the notion of “extreme hardship”, proving extreme hardship is particularly difficult. Essentially, “extreme” is the key term here, therefore you have to demonstrating more than the usual hardship that any family member would feel when they are faced with a separation due to the denial of a visa, and show great actual or prospective injuries to the qualifying relative(s). In plain English, you would require to show severe financial, emotional, or medical consequences to one of your U.S. family members combined with extreme impacts.

Many applicants are unable to find out before leaving the United States whether the waiver will be granted, regardless they need to first leave the country and continue with the consular interview.
However, there is an exception (a) if you are immediate relative of a U.S. citizen, (b) no other grounds of inadmissibility apply to you, and (c) the hardship you’re alleging is to your immediate relative, such as a U.S. citizen spouse or parent (children do not qualify), in this case you may be able to apply for a “provisional” or “stateside” waiver before you leave the U.S. for your consular interview.

A waiver case is never to be taken lightly. We always strongly advise not undertaking this extremely challenging process without an experienced attorney’s assistance as attaining the American dream is at stake. At Yazici Law, we have a vast amount of experience focusing on various waivers of inadmissibility.

Call an experienced Immigration Waiver Attorney, Call us Now!

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Gokhan Yazici

Gokhan Yazici is an experienced attorney and counsellor practicing in the state of New York. He is specialized in U.S. Immigration Law, Corporate & Business Law, Business Transactions, Commercial Litigation, International Trade & U.S. Customs Law. Mr. Yazici holds an LL.B. degree from Istanbul University Law School and an LL.M. degree from Temple University James Beasley School of Law.