When entering the United States with a nonimmigrant visa, a foreign national is allotted a specific period of time to remain in the United States under that visa. The amount of time is dependent on the type of visa. The most common visa is the visitor visa. Although the visitor visa stamp in the passport states it is valid for 10 years, a foreign national entering on this visa is usually only allowed to remain in the United States for 6 months.

When entering the United States, a foreign national passes through Customs and Border Protection and is provided a white card, known as the I-94 card, which lists the expiration date of the foreign national’s visit. On or before the expiration noted on the I-94 card, a foreign national is expected to depart the United States or file to extend or change his visa.

Failure to timely depart the United States or otherwise file for an extension or change of the visa has its consequences.

A foreign national who remains in the United States without legal authorization, known as accruing unlawful presence, for more than 180 days is subject to a 3-year bar from the United States. Overstaying for 1 year or more is a 10-year bar from the United States. This means that once the foreign national leaves the United States after overstaying a visa for more than 180 days, then he is barred from returning to the United States for 3 or 10 years. There are limited exceptions in which unlawful presence may not be counted for purposes of the 3/10-year bar, including asylum applicants, women and children subject to battery or extreme cruelty, and minors under the age of 18.

A foreign national subject to the 3/10-year bar can apply for a waiver of the bar once outside the United States, but this waiver is very difficult to get. Most waivers are denied.

It is obvious that it is best not to overstay a visa and if you do, keep it under 180 days. But, what if a foreign national does overstay a visa for more than 180 days and does not fall under one of the limited exceptions?

One thing to keep in mind in strategizing your best course to legalize your immigration status is to know that the 3/10-year bar only kicks in once the foreign national departs the United States. Thus, a foreign national still in the United States is not subject to the bar.

However, to discourage foreign nationals from overstaying visas, there is another bar in the immigration law. This bar prohibits a foreign national from filing an application for adjustment of status (green card application) while in the United States if he overstays a visa for more that 180 days. So, if a foreign national overstays for more than 180 days, he is barred from applying for a green card while in the United States. However, if the foreign national departs the United States to apply for the green card at the U.S. Consulate, the foreign national is subject to the 3/10-year bar.

As with many areas of the immigration law, there is an exception to the green card bar. Spouses, parents, and unmarried children under 21 of United States citizens who entered the United States on a lawful visa are permitted to file green card applications in the United States despite the bar.

This bar may also be overcome if the foreign national can establish that he was a beneficiary of an immigrant petition filed on or before April 30, 2001. On April 30, 2001, a law known as 245(i) expired. 245(i) allowed foreign nationals to file for adjustment of status despite unlawful presence in the United States in exchange for paying a penalty fee. The Citizenship and Immigration Service continues to allow foreign nationals to use 245(i), if they can establish that they were a beneficiary of an immigrant petition while the law was still in existence.

It is impossible to paint with one broad stroke and say what is the best course for everyone who has overstayed a visa because each situation is different and the immigration laws are very intricate and complicated. But, the decision to remain or depart the United States for those who will be subject to the bar should be weighed carefully.

The purpose of this article is to highlight the difficulties and pitfalls of the immigration law when a foreign national overstays a visa. In upcoming articles, I will go into more depth about the waiver of the 3/10-year bar, the 245(i) law, and the bar to filing green card applications in the United States.

Audra R. Behné has a practice dedicated to immigration law and is a member of the American Immigration Lawyers Association and the Los Angeles County Bar Association, Immigration Division. Her main office is located at 14724 Ventura Blvd., 2nd Floor, Sherman Oaks, CA 91403 ● Tel. (818) 881-2155 ● www.audrabehne.com email: audrabehne@aol.com 

This article is for informational purposes only and is not meant to provide legal advice in any specific case. Results may vary depending on the facts of a particular case. We make no prediction, warranty or guarantee about the results of any case, nor do we assume any legal liability for the completeness of any information and its impact on the results of any case. Each case is different and results depend on the facts of each case. Consult with and retain if you need legal advice.

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