Have you Overstayed your Visa in the USA?

Canadians overstaying US Visas

It happens very often where Canadians enter the US and overstay their time in the US. If this occurs, you could be subject to a 3 or even 10 year bar. It is very important to deal with this situation without delay. And there are options. Waivers are available for overstay cases. Below is some helpful information.

I. Consequences of Overstaying a US Visa:

Some of the consequences of overstaying a visa are:

  1. Overstays may be barred from returning to the US for ten years or three years depending on the period of overstay
  2. Overstays may be further restricted from Extension of Stay or Change of Status
  3. Overstaying will void your existing visa
  4. Overstays generally are unable to obtain a new visa except in their country of nationality
  5. Overstays may not be able to Adjust Status in the U.S.

These consequences may be considered as below:

(i)    Inadmissibility as a consequence of Overstaying a Visa

The Three Year Bar: Persons who remain in the US after their authorized stay has expired for more than 180 days but less than one year, and who leave the US prior to the institution of removal proceedings, are barred from reentering the US for three years from their date of departure.

The Ten Year Bar: Persons who remain in the US after their authorized stay has expired for more than one year, and who leave the US prior to the institution of removal proceedings, are barred from reentering the US for ten years from their date of departure.

(ii)  Bar to Change of Status and Extension of Stay as a consequence of Overstaying a Visa
Persons who remain in the US after their authorized period of stay are not able to extend their stay in the US or change their status to another nonimmigrant 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.

(iii)            Visa Voidance as a consequence of Overstaying a Visa
The visa of any foreign national that overstays their period of stay is automatically 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 a visa may not be readmitted unless they have obtained a new nonimmigrant visa in their country of nationality.

(iv)            No Consulate Shopping as a consequence of Overstaying a Visa
The law provides that any foreign national who has stayed beyond his period of authorized stay in the US 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 US. 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 nonimmigrant visa application.

II. Waiver of the Three or Ten Year Bar of Inadmissibility for Overstays

(i)    Nonimmigrants
The 1996 reforms do not include a waiver of the three or ten year bar for nonimmigrants. The immigration laws do not, however, preclude a nonimmigrant from applying for a general waiver under section 212(d)(3). Section 212(d)(3)makes available to nonimmigrants a general waiver for most grounds of inadmissibility.

(ii)  Immigrants
The statute does provide a specific waiver for the three or ten year bar for foreign nationals who are the spouse, or son or daughter of a US citizen or permanent resident. The waiver is not available to foreign nationals who only have children who are US citizens or permanent residents. To obtain the waiver the foreign national must show that their US citizen or permanent resident spouse or parents will suffer ‘extreme hardship’ if the foreign national is not allowed to return to the US. ‘Extreme hardship’ to the foreign national himself is not recognized for the purposes of the waiver.

Have you Overstayed your Visa in the USA?   We can help.  Call us for a consultation or use our contact form to the right of this page.

You can also visit our US Waiver page if you have been denied entry to the US.