Forgiveness for Immigrants Overstaying Their Visa


A visa overstay occurs when someone doesn’t renew their visa or leave the United States once it’s expired. Whether you overstayed your visa intentionally or on accident, it can cause some inconvenient consequences. Your visa will likely be voided, leaving you unable to apply to get a new one unless you go to the consulate in your home country. In other cases, you’ll be banned from the U.S. for a few years.

How seriously your visa overstay is taken and whether or not the immigration authorities will “forgive” it depends on which immigration benefit you’re seeking and how long you overstayed. Fortunately, there are circumstances in which you can get immigration benefits even if you didn’t leave when your visa expired.

What to Keep in Mind About Overstaying a Visa

  • The consequences for overstaying a visa vary depending on how long you overstayed
  • You’ll most likely have to apply for a new visa in your home country if you overstayed your U.S. visa
  • In some serious cases, you may be banned from the U.S. for 10 years or even life
  • If your visa has already expired and you’re still in the States, you should seek legal counsel immediately

What are the Legal Consequences of Overstaying a Visa?

Overstaying your visa comes with a number of potential consequences, including a loss of your current privileges or immigration status and a loss of opportunity to obtain permanent resident status. Overstaying a visa might negatively impact your chances of getting citizenship later and may lead to deportation in serious or crime-related cases. Your chances of being granted re-entry into the U.S. go down if you were caught overstaying a visa and/or deported from the country.

Overstays of Less than 180 Days

If you overstayed by less than 180 days, you won’t be considered legally inadmissible to the U.S. and may be granted another visa or lawful permanent residence in the future. However, if you apply for a temporary visa that requires you to convince the immigration official that you’ll depart the U.S. once your allotted time is up, your overstay could count against you.

Overstays of More than 180 Days

Overstaying a visa by more than 180 days will likely come with more severe penalties as you’ll have accrued more “unlawful presence” during that time. Unlawful presence is time spent in the United States without an immigration status (undocumented). If your length of unlawful presence is over 180 days but less than a year, and you depart the U.S. before any official means are used to remove you, you’ll be inadmissible (barred) from the States for three years.

If your unlawful presence lasted longer than a year and you leave before official means are used to remove you, you’ll be inadmissible for 10 years. If you stay longer than a year (in total, not just continuously), or are deported from the U.S. and try to re-enter without inspection, you may receive a permanent ban.

Keep in mind that these consequences only apply to those who have left the U.S. and attempt to come back. In some (rare) cases, you can adjust your status while you’re still in the United States, but this is only available to limited categories of individuals. People who have entered the country illegally don’t have the option to adjust status and must apply for immigration benefits in their home country.

How Working With an Attorney Can Help

Immigration is a highly confusing and complex subject for people who are unfamiliar with it, and it’s always changing. There are specific rules that apply to which visas you can get, the qualifications necessary for obtaining one (like a waiver), and what to do if you’ve overstayed in the past. An experienced immigration lawyer will look at any unlawful presence you’ve accrued and let you know what your options are and how best to proceed.

Frequently Asked Questions on United States Visas

Here are some commonly asked questions regarding U.S. visas and overstays:

Q: How can I avoid overstaying my visa?

You can always avoid this by planning ahead and keeping a close watch on the date. Always check and double check passport deadlines, expiration dates, and keep yourself updated on immigration policies (as they change often). Budget and plan ahead of time so you don’t find yourself missing a flight or encountering another situation that causes you to overstay a visa.

Q: What are my options if my visa has already expired?

If your visa already expired, you should contact an immigration attorney immediately. They will speak with you, look over your current situation and immigration status, and help you decide which steps best suit your needs. Time is an important factor when it comes to visas, so the sooner you do this, the better.

Q: If I’m visiting the U.S. on a temporary visa and want to get a permanent visa, what should I do?

It can be difficult to change your immigration status when you’re already in the U.S. and, in some cases, it may not be possible at all. Whether or not it’s an option for you completely depends on your situation, so it’s best to speak with a skilled immigration attorney who can provide you with more specific answers to your questions on this.

Q: How does an automatic visa revocation work after I’ve overstayed?

If you overstay your visa without filing for an extension or change of your status before the date of departure, your visa will be cancelled and voided automatically. And, as mentioned before, you will only be able to apply for a new one in your home country. However, if you did file to change or extend your status before the date of departure and it’s granted eventually, overstaying won’t count against you. If immigration denies your request, on the other hand, the time will count against you.

What to Do if You Need Help

Overstaying a United States visa can complicate not only your situation but, in some cases, your family’s. If you have questions or need help on any immigration or visa issues, you might need a lawyer’s help. An immigration attorney will have the experience necessary to assist you in the legal complexities of your circumstances. They can also represent you in immigration court, if necessary.

Call our Immigration team at (480) 626-2388 to discuss your case today.

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