Can You Overstay Your Visa While Waiting For a Green Card?

Office Locations

Proudly Serving Dallas & Houston.

DALLAS

OFFICE 1700 Pacific Ave. #3750, Dallas, TX 75201

EMAIL info@attlaw.com

(972)426-7464

HOUSTON

OFFICE 912 Prairie Street, Houston, TX 77002

EMAIL info@attlaw.com

(346)241-0125

Visa Overstay Risks

Overstaying your visa has severe consequences if you are in the United States on a visa and waiting for your green card. Overstaying your visa can have serious consequences, including preventing you from legally returning to the United States, making it difficult to obtain a green card (permanent resident status) or other immigration benefits, or even being deported.

Consult an immigration attorney if you have overstayed your visa and hope to apply for a green card.

What Does Overstaying Your Visa Mean?

“Visa overstay” refers to any unauthorized stay in the United States beyond the authorized period.

When you enter the United States on a non-immigrant visa, you are granted a specific period to stay there. Typically, this period is found in the Form I-94 Arrival/Departure Record created by U.S. Customs and Border Protection. This date may differ from the expiration date on your visa stamp.

For instance, you could have a valid visa, but the validity of the visa isn’t equivalent to the length of your authorized stay. It is, therefore, not safe to rely solely on your passport’s visa stamp to determine your stay’s duration. Even though a visa stamp indicates the date you are required to enter the U.S., it does not necessarily mean how long you will be permitted to stay there.

Non-immigrants must depart the U.S. before the expiration date on their Form I-94 to avoid overstaying or putting themselves at risk of future visa or travel restrictions.

What Constitutes Unlawful Presence?

Unlawful presence is when a foreign national remains in the United States with unlawful immigration status.

An unlawful presence begins the day after the authorized stay ends. Here are some examples:

Overstaying your authorized period of stay after your lawful immigration status expired.
Violating the terms of your visa.
Illegal entry into the United States without inspection by a U.S. immigration officer.
Failing to depart after receiving a removal order.

Penalties for Unlawful Presence in the U.S.

Among the penalties that can be imposed for unlawful presence are:

Inadmissibility: Those who leave the United States after accruing over 180 days of unlawful presence may be barred from returning for three years. Over one year of unlawful presence can result in a ten-year ban on returning.
Removal from the U.S.: An individual found unlawfully in the country may be deported and barred from returning to it. You will be required to stay outside the country for a certain number of years by the terms of your removal. This could be five, ten, 20, or even permanently.
Inability to obtain future visas and immigration benefits: Accrued unlawful presence in the United States may result in difficulty obtaining future visas and immigration benefits such as employment authorization or federal student aid.
Criminal sanctions: A person unlawfully present in the United States may face criminal charges such as fraud or identity theft.

The stakes are even higher for those who have committed visa fraud. Individuals who knowingly give false information or deceive immigration officials to obtain a visa can be permanently barred from entering the United States.

What Happens if Your Visa Expires Before Your Green Card Is Awarded or Rejected?

Suppose your visa has expired, and you are awaiting a decision on your Green Card application or other immigration status. In that case, you do not accrue unlawful presence as long as you filed your application before your authorized stay expired.

It’s important to note that the period of stay authorized by the Attorney General continues if the application is denied and resubmitted to the Board of Immigration Appeals (BIA) for further review.

However, if your application is denied, illegal presence may begin on the date of the denial or when your authorization to stay expires. You will also be required to leave the country immediately.

It is essential, however, that you remain compliant with immigration laws during this period.

What If You Leave the U.S. While Waiting For Your Green Card?

If you leave the United States while the application is pending, your green card application will be terminated unless you have a valid travel document. You will be deemed to have abandoned your application.

U.S. Citizenship and Immigration Services (USCIS) will deny your green card application if you leave the United States without a travel document while your application is still pending.

This could result in you having to redo all paperwork and pay fees again. At worst, you could be prevented from re-entering the country.

An experienced immigration attorney can explain your options if you must leave the United States in an emergency.

Who Can Adjust Status After a Visa Overstay?

The adjustment of the status process is possible in two scenarios despite a visa overstay:

If you legally entered the country and applied for residence as an immediate relative of a U.S. citizen.
If you have overstayed your visa but are the beneficiary of an employment-based Green Card petition, you may be eligible to apply for an adjustment of status.

What Is a Waiver if You Overstay Your Visa in THE US?

A waiver for overstaying your visa is a form of forgiveness that allows the foreign national to obtain lawful permanent residence in the U.S. While obtaining a visa overstay forgiveness is possible, it isn’t easy and requires the individual to demonstrate extreme hardship or other exceptional circumstances. That’s why it’s advisable to speak with an immigration attorney before requesting such relief.

If you are considering applying for a waiver of your visa overstay, it’s important to remember that the burden of proof is on you. You will need to provide evidence of your extreme hardship or exceptional circumstances. You will also need to demonstrate that you are deserving of the waiver. A skilled immigration attorney can help you understand this process and determine the best approach for your situation.

Is Your Visa Overstay Causing You Problems?

Keeping up to date with any updates or changes in immigration law that may impact your situation is crucial due to the constant changes in immigration law. An experienced immigration attorney can provide valuable guidance and insight into these changes and how they may affect your case.

Whether you are experiencing problems with the green card application or wondering, “how long does it take to bring a spouse to the USA?” Andrew T. Thomas, Attorneys at Law, can help.

Our experienced immigration attorneys provide a full range of citizenship and immigration services and are dedicated to helping clients achieve their immigration goals.

We understand the complexities of the immigration system and are committed to providing personalized and effective legal representation to every client.

Whether you need assistance obtaining a green card, adjusting your status, an opinion on a visa overstay, or any other immigration matter, we are here to help.