While it may seem that stricter immigration laws are among the consequences of the 9/11 attacks of 2001, many of the tough requirements for visitors to the United States who have overstayed their visas have, in fact, been in place much longer – since immigration law reforms of 1996.  Regardless of the perception of when and why the laws tightened, there can be serious consequences for those who overstay their visit.

If you are in the United States on a nonimmigrant visa and believe you may need an extension – or even think you’ve overstayed your visa, you must act immediately.

First, verify you status by taking a look at your I-94 card that was issued to you when entered the U.S. On this card, will be a “period of admission.”  Has this date passed? If so, contact an attorney immediately to assess your options.  The next steps often will depend on the duration of the violation:

• If you have overstayed your nonimmigrant visa by less than 180 days, you are eligible to return to your home country to apply for another visa, but you are ineligible to return to the United States on your expired nonimimigrant visa.  Prior to 1996, visitors were allowed to go to a consular office in a country close to the U.S. to apply for a visa, rather than returning to their home country.  However the 1996 reforms have made such “consulate shopping” nearly impossible.  Upon return to your home country you may apply for a new nonimmigrant visa with expedited processing to minimize the time you are outside of the U.S.
• If you have overstayed your nonimmigrant visa by more than 180 days but less than a year, you face removal proceedings, and also are barred from returning to the United States for three years.
• If you’ve overstayed by more than a year, removal proceedings and a 10-year bar from admission into the United States await you. These bars to admission apply even if you are approved for another non-immigrant visa.

There are exceptions to these rules, such as:

• Minors, persons with pending good faith asylum applications, and certain battered spouses and children are not considered to be unlawfully present for the purposes of the three- and 10-year bars to admission.
• Non-citizens who have an application for change, extension, or adjustment of status for their visa pending at the time of their former visa’s expiration, and those who have not worked illegally after their visa expired, are not considered to be unlawfully present for the purposes of the three- and 10-year bars to admission.
• Visitors to the U.S. on a student visa, whose I-94 is marked “D/S” (duration of status) for the dates of admission typically are not subject to the three- and 10-year bars to admission as long as there has been no formal determination that terms of the visa have been violated.  It is important to keep in mind that overstaying a student visa can make it more difficult to get a visa in the future, however.

Other very rare exceptions, including those allowing a non-immigrant spouse or child of a U.S. citizen, or lawful permanent resident (LPR) to return, if barring them from return would cause the related citizen or the LPR “extreme hardship.”  It is even more rare to allow non-immigrants who have overstayed their visa to adjust their status while remaining in the U.S.

It is most important to remember that overstaying your visa for any length of time – whether a week, a year or 10 years – jeopardizes your chance of getting a visa in the future.  Even if you are subject to a three- or 10-year bar and that period has passed USCIS will look at the fact that you have previously overstayed a visa when determining your “nonimmigrant intent.”  This is any visitor’s essential burden of proof in a visa application.

If you have questions about visa violations or other issues related to immigration law, click here to contact our firm for a consultation.