Visa Overstay: What Is It And What Are Its Consequences?

What is visa overstay? Some people look at their nonimmigrant visa (B1/B2, F-1, H-1B, etc.) and mistakenly think they are allowed to stay in the United States until the expiration date of the visa.  The validity of the visa however, is unrelated to the period of time one is allowed to stay in the United States.  Rather, the period of time one is allowed to remain in the United States is governed by the I-94 Arrival/Departure Record (“I-94”).  When entering the United States, the Customs and Border Protection officer at the port-of-entry will stamp the passport and indicate a category of admission (e.g. tourist, student, temporary worker), and an expiration date that limits the amount of time the individual is allowed to stay in the United States.  Sometimes, such as for F-1 students of J-1 visitors, instead of an expiration date the officer will write “D/S,” which stands for “duration of status,” and means the nonimmigrant is permitted to remain in the United States so long as he or she is complying with the terms and conditions of status.  For example, an F-1 student admitted “D/S” may remain in the United States as long as he or she is pursuing a full course of study at a USCIS-approved academic institution or engaged in authorized optional practical training following the completion of a full course of study, and has not otherwise violated his/her status by, e.g. engaging in unauthorized employment.

What are the consequences of visa overstay? Remaining in the United States beyond the expiration date of the I-94 would render the individual unlawfully present, and subject to deportation.  One who is unlawfully present for more than six months but less than one year, and who departs the U.S., is subject to a three-year bar from admission to the United States.  One who is unlawfully present in the U.S. for one year or more, and who departs the United States, is subject to a ten-year bar from admission. It is worth nothing that for someone admitted “D/S,” unlawful presence does not start until USCIS makes an official determination that the individual is out of status.  Regardless of the circumstances, the most prudent route would be to consult an experienced immigration attorney with any questions about visa overstay and its consequences.

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