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Visa Overstay Explained: 3 Time Frames + Consequences

Nothing good happens when you overstay your non-immigrant visa.  We've had a lot of people ask us, especially during the COVID outbreak, about overstaying their visas. Some people like to file an I-539 to try to extend those visas. Some people just stay extra long. For whatever reason, a surprisingly high number of people don't leave the United States before the validity of their visa expires.

Let's go through what happens when you overstay your visa.

The important thing to think about is USCIS, the State Department, and Customs and Border Protection, what they want to know is, how long did you overstay? Three time periods are important in thinking about your overstay. 

Read on to discover:

  • What the three groups are
  • What happens in each of those scenarios
  • How can an immigration lawyer help with visa overstays

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What is a Visa Overstay?

This article discusses situations where someone came to the United States on a temporary or non-immigrant visa or through the visa waiver program. When they got to the U.S., they were given a deadline by which to leave.

But they didn't leave on time. They did not follow the law. They started to build an unlawful presence.

Now they have been living in the United States, certain bad things happen to them if they leave the U.S. now after that long overstay.

We go through each of the time frames below.

Overstay Less than Six Months

So if you overstay your visa between one day and six months, then you are going to probably be okay. Now when I say probably okay, it depends on future activity. 

In other words, you might have problems dealing with getting a visa renewed if you had a one-time entry visa and you overstayed in that under six-month period. So if you overstayed between one day and six months after your visa's expiration date, they might not give you another visa. Obviously, Corona would be a reason why somebody would accrue unlawful presence, but at the end of the day, you'd be going back to the embassy, asking for a new visa.

And they would say, hey, look, sir or madam, you did not leave when you were supposed to. Why should we give you another visa? We don't trust you. We're not going to give you another visa.

Or if you have a multiple entry visa and you overstayed on your last trip for less than six months, then you would have a situation where Customs and Border Protection might not let you back in the next time. So that's the first group - people with an overstayed visa for less than six months.

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Overstay Between Six Months and One Year

Then we have the people who overstayed between six months and under a year. Now for those people, they're going to have what's called a three-year bar. A three-year bar, which means they're not going to be allowed entry into the United States for three years from the date of their last exit.

So let's say that somebody comes to the United States, they are allowed a six-month entry on their visa, and they overstay for seven months.

So now they're in that six-month to one-year period that they've overstayed. They overstayed by a month.

Now, if they try to reenter the United States on their next visit, they're going to be banned, turned back, and prohibited from entering the United States. And they won't be able to come back for three years.

Now, it's also going to be important in those scenarios and in the 3-year ban to document when you actually left the United States. More importantly, you need to document when you went back to your home country because you're going to have to show that you did your time, sort of like jail time outside the United States.

And sometimes, people have a hard time proving when they left the United States. So as strange as it sounds, if you've overstayed and you're leaving, then you're going to want to demonstrate when you left the United States. You'll have to prove that up probably with plane tickets or other entries into other countries so that you can demonstrate that you were no longer in the United States on a certain day because it's going to be your burden to prove.

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Overstay More than One Year

And then, of course, we'll talk about the people who overstayed by one year. Now, these people have a 10-year bar. So same scenario. You come to the United States on a visit visa or a student visa, your legal time in the United States ends, and you overstay by more than one year. Then you're going to have a 10-year bar.

You won't be able to come back to the United States for ten years. Also, don't forget that you will need a new way of coming to the U.S. A new basis for a visa.

Now, lots of things to think about. These bars can be overcome. There are certain exceptions and waivers that are available, and we talk about those in other blog posts and videos. For instance, if you have a permanent resident spouse or are related to a U.S. citizen and it's going to produce an extreme hardship for you to be separated and to be not allowed back into the United States. Then that's one scenario where you might be able to obtain a waiver of your 10-year bar.

You need to talk to an immigration attorney specializing in citizenship and immigration services before you leave the United States. So we talk to people all the time who either entered without inspection and never went back or entered with inspection and never went back. And you really need to be careful here because there's a lot of bad information on the internet and every situation is different.

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So we need to look at how did you enter? How long have you overstayed? What did you do during your overstay?

And what bars might you have if you leave the United States? Do you have the three-year bar? Do you have the 10-year bar? Or do you have some other kind of bar? You might have a permanent bar if you entered without inspection on several occasions, those kinds of things.

So if you find yourself in a scenario where you've overstayed your visa, I would strongly suggest that before you leave the United States, talk to an immigration lawyer. We've seen scenarios where people could have obtained relief but didn't know that they could obtain relief. So, for instance, let's say that someone was in the United States and they had overstayed their visa, they were married to a U.S. citizen, but they thought, oh, I better leave and go consular process. They might find themselves with a 10 bar if the overstay has been more than a year.

So it's a tricky situation, it needs some analysis, and you probably shouldn't try to figure it out on your own because it's confusing for me and for everybody that works on these things. You have to really dig in deep and look at the timeline and look at the facts.

How an Experienced Immigration Lawyer Can Help

Our immigration law firm, Hacking Immigration Law, LLC, helps people who are inside the United States but not in lawful immigration status to figure out their situation and to try and make things better. It's what we do every day. If you or a loved one finds yourself in this kind of situation, please call us at (314) 396-2314.

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