A properly obtained visa usually states a specific date during which the visa remains valid. If a foreign national (any foreigner who is not a naturalized citizen) stays in the United States past this date, he or she will be considered unlawfully present once the date passes. While there are many penalties foreign nationals may face if they overstay their visa, there are also certain situations where an overstay won't have a negative affect on the individual's future admission into the United States.
Overstay Time and the "Tolling" of Accrual
The length of time that a foreign national remains unlawfully present determines how long he or she will be considered inadmissible for reentry into the country. However, the clock can stop ticking (or is "tolled") on the amount of time unlawfully present in the country if certain factors are present in the case. The accrual of overstay time may toll if the foreign national:
Has been lawfully admitted or paroled into the United States
Was under the age of 18 during the unlawful presence
Has a non-frivolous pending asylum application on file with USCIS
Is a victim of trafficking and is unlawfully present due to the trafficking
Is a beneficiary of a family unity program
Has a pending application for either an adjustment, an extension, or a change of status
Had a non-immigrant visa and is a battered spouse or child who can show a connection between the abuse and the overstay
If at any time a reason for tolling the overstay time no longer exists, the foreign national's unlawfully present time will continue to accrue. While there are ways for the individual to extend or even change a visa to prevent overstaying, there are severe penalties for those who do overstay and refuse to depart, according to a USCIS ruling.
Extending or Changing Visas
An easy way to avoid being unlawfully present is to extend a nonimmigrant visa before it actually expires. A request to extend nonimmigrant status can either be mailed to the USCIS or done through the USCIS website. The foreign national may apply for an extension of stay in the United States if he or she:
Was lawfully admitted into the United States as a nonimmigrant;
Has not committed any act that makes him or her ineligible to receive an immigration benefit, such as a felony conviction;
Is not required to depart the United States prior to extending status; and
Submits an application for an extension of stay before the expiration date on his or her Form I-94.
If the foreign national's I-94 has a nonimmigrant category of C, D, K-1, K-2, S, TWOV, WT, or WB, these type of visas cannot be extended and he or she must depart on or before the date on the I-94 expires.
Another way to avoid overstaying a valid visa is to completely change your visa status. Like an extension of a visa, changing a visa status must be requested through the necessary forms with the USCIS before the individual's authorized stay expires.
Penalties for Overstaying a Visa
Foreign nationals who are unlawfully present in the U.S. from 180 days to less than a year will be barred from entering the country and receiving a visa for three years from the date he or she became unlawfully present. If the foreign national is unlawfully present in the United States for a year or more, then the bar of coming to America and obtaining a visa is 10 years.
Foreign nationals who receive a final order of removal from the U.S. may also face criminal and civil penalties for their continued unlawful presence. An individual will be fined under title 18 of the United States Code or imprisoned for up to 4 years, if he or she does any of the following after officially being told to leave the country:
Fails or refuses to depart within 90 days from the date of the final order of removal,
Fails or refuses to make timely application for travel or other documents necessary to the foreign national's departure,
Takes any action designed to prevent or hamper the foreign national's departure, or
Fails or refuses to present himself or herself for removal at the time and place required by the Attorney General.
However, if a foreign national's removal is due to smuggling, certain criminal offenses, failure to register or falsifying documents, or grounds relating to security, he or she may face up to 10 years in prison. Civil penalties should also be a concern for any individual who refuses to leave the United States. Under the Attorney General's discretion, a foreign national that violates these laws will be required to pay up to $2,000 for each violation.
Getting Legal Help
Immigration laws can be difficult to understand and are always subject to change. It's important to consult with an experienced immigration attorney if you have any questions. You can also check the USCIS website for the most up-to-date rules and regulations regarding visas. Learn more about the United States border entry rules and visas on FindLaw.
Contact a qualified immigration attorney to help you with visa procedures.