How Overstays Happen
In the United States, most officially issued visas include an expiration date, after which the document becomes invalid and the beneficiary is expected to depart the country. When a foreign national (any foreigner who is not a naturalized citizen) remains in the United States once this date has passed, they will be considered unlawfully present. Generally, unlawful presence carries stiff penalties that would limit your ability to legally reenter the country.
Consequences of Overstaying a Visa
The severity of unlawful presence penalties depends on the length of the offense, as well as other possible extenuating circumstances. If you overstay your visa anywhere from 180 days to under 1 year, you will be prohibited from reentering the country for 3 years. During this punitive period, you will also be unable to procure a new visa. Should you overstay your visa for a period greater than 1 year, you are forbidden from reentering or obtaining a new visa for 10 years.
Furthermore, you may receive a “final order of removal” should the United States government realize you are unlawfully present. This edict requires you to leave the country within 90 days of its issuing. Ignoring or defying this order can lead to even greater consequences, including fines and up to 4 years of jailtime.
To avoid imprisonment or heavy fines, you must do the following after receiving a final order of removal:
- Depart the country within 90 days of the order’s issuance
- Take steps to ensure a timely departure, including applying for any necessary travel documents
- Present yourself for removal at the time and location specified by the Attorney General
You must also not do anything that might prevent or delay your exit from the country. Additionally, some conditions warrant even greater penalties. Should your removal be the result of certain criminal offenses, including the falsification of records, smuggling, or those relating to national security, violations could result in you facing as many as 10 years in prison. Finally, note that it is also possible to incur civil penalties because of removal violations. You could be slapped with as much as a $2,000 fine for each violation.
Ways to Avoid Accumulating Overstay Time
To review, penalties for visa violations grow more serious the longer you “overstay” in the country past your expiration date. However, there are conditions in which the accumulation of your “overstay time” can be paused and not count against you in a removal proceeding, potentially resulting in a more lenient or even total avoidance of penalty.
You can possibly freeze the accumulation of your overstay time if you:
- Were paroled or otherwise lawfully admitted into the country
- Were a minor (under the age of 18) during the unlawful presence
- Hold a non-frivolous, pending asylum application with the U.S. Citizenship and Immigration Services (USCIS)
- Hold a pending application for an extension, adjustment, or change of visa status
- Were a victim of trafficking
- Hold a non-immigrant visa and were a battered spouse or child, resulting in overstay
Meeting any of these conditions can result in a pause of your accrual of overstay time. However, as soon as they no longer apply, your overstay time would resume accumulating, potentially leading to the aforementioned consequences.
The best way to avoid penalties is to avoid becoming unlawfully present in the first place. You can attempt to extend your visa or change its status by filing the appropriate forms with the USCIS. Keep in mind, not all visa types can be extended, and forms must be filed before your existing visa expires. You must be considered in good standing (i.e. not convicted of a felony and initially legally admitted to the country as a nonimmigrant) to be eligible to change your visa status.
Concerned or Confused About Your Visa?
The cost of making a mistake in handling your visa can be huge, and we understand that the laws can be difficult to navigate. We built The Sekou Clarke Law Group to help immigrants facing these challenges fight for a positive outcome. Our Orlando attorneys speak English, Spanish, and Portuguese, and we are ready to see if we can help guide you toward a brighter future.
If you or a loved one have questions about your visa, dial (407) 269-8774 or contact us online for a free consultation.