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What if I overstayed my visa?

It is important to keep in mind that if you have overstayed your visa, you may still have a future to obtain permanent residency (a green card) in the United States. Yet, if you exit the country – without first applying for permission – then you may find yourself barred from re-entry for 3 or 10 years, depending on how long you have overstayed.

How do I know if I overstayed my visa?

A nonimmigrant can learn whether they overstayed by looking at the information on their “Arrival/Departure Record.” You can find this on your I-94 or your I-94W (which is no longer in use).

As of 2013, immigration started automating the I-94 process. If you entered the US prior to this, you may have received your I-94 on a small white paper. If you would like to obtain your digital I-94, you can visit:

https://i94.cbp.dhs.gov/


Your I-94 will state your admission number, your date of entry, your class of admission, and the end date designated for your visit. This illustrates that you entered the United States lawfully. If you cannot illustrate that you entered the U.S. lawfully, with a valid visa and with inspection, you may still qualify for permanent residence (a green card) through an immediate family member, yet you may need to apply for a waiver and apply for your nonimmigrant visa at a consulate abroad.

What can happen if I overstay my visa?

If you over stay your visa and you exit the US you may subject yourself to either a 3 or 10 year bar. The differences are illustrated below:

  • If you overstay and remain in the U.S. for more than 180 day, but for less than 1 year, you may be barred from the U.S. for 3 years.
  • If you overstay and remain in the U.S. for 1 year or more, you may be barred from the U.S. for 10 years.

There are exceptions to these 3 and 10 year bars. Yet, you will need to speak to an immigration attorney to see if you qualify for one of these exceptions.

Did you accrue unlawful presence?

To determine whether the 3 or 10 year bar applies to you, immigration will determine whether you accrued unlawful presence. Unlawful presence is not accrued if:

· Were present in the U.S. while you were under the age of 18;

· If you had a bona fide asylum application filed with immigration;

· If you were a beneficiary of the family unity program. These are for families who became permanent residents as farmworkers or under one of the amnesty programs from the 1980s.

· If you had a pending application for adjustment of status (a green card/permanent residency application), an extension of status, or a change of status;

· If you were a battered spouse or child who entered on a nonimmigrant visa and can show a connection between the abuse and the overstay;

· If you were a victim of trafficking who can show that the trafficking was central to your unlawful presence; or

· If you had received protection via Temporary Protected Status (TPS), Deferred Enforced Departure (DED), Deferred Action, or Withholding of Removal under the Convention Against Torture.[1]

Need Counsel for Immigration? Call Today!

Immigration law can be complicated and this article does not exhaust all the issues when overstaying a visa. These issues can be extremely complex, and a single misstep could potentially lead to a deportation or other immigration penalties. If you have any questions regarding applying for a green card through your spouse, please do not hesitate to contact our office.

Call our law firm to consult with an immigration attorney today at: (949) 478-4936.


[1] https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html