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Consequences of Overstaying

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018 (last modified Oct 25, 2019)

Aliens who overstay their permission to stay in the United States may start accruing days of unlawful presence.

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What are the consequences of unlawful presence in the United States?

  • The accumulation of any period of unlawful presence automatically results in the cancellation of the nonimmigrant's visa and the nonimmigrant will be required to reapply for a new visa through the U.S. embassy in his or her home country.
  • The accumulation of more than 180 days, but less than one (1) year, of unlawful presence, in a single visit to the United States, will result in inadmissibility to the United States for a period of three (3) years.
  • The accumulation of one year or more of unlawful presence, in a single visit to the United States, will result in inadmissibility for ten (10) years.

Any period of unlawful or unauthorized presence prior to April 1, 1997, will not be counted towards the determination of the 3- and 10-year bars.

Some nonimmigrants, who have accumulated days of unlawful presence, cannot adjust their status to an immigrant status inside the United States.  See Eligibility Criteria for Adjustment of Status.  Most nonimmigrants, who are inadmissible because of unlawful presence, would not be able to receive an immigrant visa through consular processing outside of the country before the expiration of the applicable time bar. While a waiver is available, the process for obtaining a waiver is exacting, and the chance of success is limited.

Note. The 3- and 10-year bars to admissibility are triggered upon departure from the United States subsequent to the accumulation of a period of unlawful presence. While you should not remain in the country in violation of your status, you should also be aware of the risk that, once you depart, you would trigger the 3- and 10-year bar. This is a serious risk, especially if you are already eligible to adjust your status in the United States.  See Adjustment of Status.

For consequences of unlawful presence in combination with illegal entry, see Consequences of Illegal Entry

When does the authorized stay expire?

The permission to stay in the United States is different from the expiration of the visa which is stamped in your passport. When you enter the United States, a border officer will issue you a Form I-94 showing when your permission to stay would expire.  You may have received a paper Form I-94, or your I-94 may only be available online in electronic form.

Retrieve Your Electronic I-94

When you apply for a visa, the consular officer may give you a multi-year, multiple entry visa. That visa would entitle you to present yourself at the border and apply for entry into the United States multiple times during the period prescribed on the visa. However, the final decision as to whether to admit you into the United States is made by the border officers at the port of entry.  For example, the officer may authorize you to stay for three or six months (just an example).  And, that would be the duration of your authorized stay. The date when your permission to stay expires is the date stamped on Form I-94, which you receive at the border. You may visit the web site of U.S. Customs and Border Protection (CBP), to retrieve a copy of your electronic I-94.

Some nonimmigrants such as foreign students may receive a “D/S” (Duration of Status) notation, instead of a date, on their I-94's. In those cases, the permission to stay is extended until the completion of authorized studies.

If you are a nonimmigrant and you wish to extend your stay in the United States, you should apply for an extension before the expiration of your authorized stay.

Generally, it is a good idea to keep copies of your travel itineraries, tickets, and boarding passes, so that you would be able to address any future questions regarding your arrivals in, and departures from, the United States.

When is a nonimmigrant considered to be out of status?

Nonimmigrant visitors to the United States are assigned a classification (e.g. B-1, B-2, F-1, etc.), when they receive their visa. Each visa classification has its own terms and conditions. For example, B visitors cannot enroll in degree programs, F-1 students cannot work (save for limited exceptions), and H-1B temporary workers cannot change employer without permission.

When nonimmigrants are admitted to the United States, they will be required to abide by the terms of their visa classification. For example, F-1 students must maintain full time enrollment in their authorized study program. A nonimmigrant who fails to maintain status will be considered to be “out of status” and will be subject to removal (deportation).

Undocumented immigrants are considered out of status (or without status) from the day they enter the country.

Can a nonimmigrant be “out of status” and not accumulate period of unauthorized presence?

In some limited circumstances a nonimmigrant may be “out of status” without accumulating a period of unlawful presence. Filing a timely and non-frivolous request for change of status, extension of stay, or adjustment of status would suspend any accumulation of unlawful presence until the USCIS decides the request.

For example, a student who has completed his or her study and has received an offer of employment in an immigrant class for which immigrant visas are immediately available may file an application for adjustment of status before the expiration of 60 days after the student's completion of studies. In that case, the student will be considered out of status but will not accumulate any period of unlawful presence, while that application is pending.

When does an “out of status” nonimmigrant start accumulating periods of unlawful presence?

Generally, a nonimmigrant starts accumulating days of unlawful presence, when his or her period of authorized stay expires or when the nonimmigrants violates the terms of his or her status.

The new USCIS rule drastically changes how students' days of unlawful presence is computed. See New Unlawful Presence Rule for Students.

Regardless of how days of unlawful presence are calculated, violations of status may result in removal proceedings and denial of future immigration benefits.

Calculation of days of unlawful presence requires consideration of a variety of factors.  Certain nonimmigrants do not accrue days of unlawful presence, e.g. asylum applicants, or children under the age of 18. Further, periods before April 1, 1997 are not included in the days of unlawful presence.

Undocumented immigrants start accumulating days of unlawful presence upon entry into the United States.

What are the consequences of accumulating unlawful presence?

Nonimmigrants, who have accumulated days of unlawful presence, may become inadmissible for a period of years (depending on the circumstances). In some circumstances, they may not be able to adjust their status (get a green card) inside the United States; and, in most circumstance, they would not be able to get an immigrant visa (i.e., green card) outside of the United States through consular processing for either three (3) or ten (10) years.

Eligibility Criteria for Adjustment of Status

Under certain circumstances, it may be possible to apply for a waiver of inadmissibility caused by accumulation of days of unlawful presence.

Provisional Unlawful Presence Waiver

Waiver of Grounds of Inadmissibility

If I have more than 180 days of unlawful presence and have applied for adjustment of status, can I travel outside of the United States and come back?

Some classes of nonimmigrants are able to adjust status in the United States, despite the accumulation of more than 180 days of unlawful presence.  If you are a member of one of these classes and apply for adjustment of status, you may be able to apply for advance parole to travel outside of the United States. On return to the United States, you still will be considered inadmissible. However, the border officers would allow you to enter the country. This is so, because pursuant to the Board of Immigration Appeals' decision, in Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), leaving the country on advance parole is not considered a "departure" for purposes of Immigration and Nationality Act (INA) § 212(a)(9)(B), which prescribes periods of inadmissibility after a departure. Nevertheless, you should consider the risks of the policy change or the USCIS' denial of your adjustment of status application while you are out of the country.


Related Topics:

Consular Processing

Adjustment of Status

Priority Date & Visa Availability

Employment While Application Pending

Travel While Application Pending

Derivative Beneficiaries

Child Status Protection Act (CSPA)

Change of Address Requirement


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