U.S. Visa Overstay Forgiveness Explained

When you receive a visa to enter the United States, you have an “admit until date.” This is the date you are supposed to leave the country. If you stay beyond this date, that’s a visa overstay, and you may be considered unlawfully present in the country. This can have consequences, including being barred from entering the United States for up to 10 years.

Visa overstay forgiveness involves getting a waiver so that you won’t be prevented from coming into the country due to your overstay. This guide will explain how to apply for forgiveness and when you can become eligible for a waiver.

What Is Visa Overstay Forgiveness?

Visa holders are allowed into the United States for a specific period, which is specified in the Arrival/Departure Record found in Form I-94. You must depart on the date specified on this document regardless of when your visa expires.

You are unlawfully present as soon as you remain in the country beyond your allowable date. You could be deported, face criminal sanctions, and—after overstaying by a certain time—could be prohibited from coming back to the United States for three to 10 years.

Visa overstay forgiveness allows you to get a waiver for your overstay so you can still take advantage of other immigration benefits, such as the ability to obtain a visa, obtain temporary protected status or apply for lawful permanent residence.

You must prove extreme hardship or exceptional circumstances to be forgiven for your overstay. An immigration attorney can assist with this process.

How Do You Overstay Your Visa?

Overstaying your visa means staying beyond the date specified on your Form I-94. Your visa is voided or canceled when you stay beyond the time allowed to be in the U.S. You are classified as being unlawfully present the day after your authorization ends.

Unlawful Presence Overview

Unlawful presence has serious consequences. If you overstay your visa and are unlawfully present, you should understand the possible results of that decision.

What Is Unlawful Presence?

The U.S. Citizenship and Immigration Services (USCIS) defines unlawful presence as “the period of time when you are in the United States without being admitted or paroled or when you are not in a ‘period of stay authorized by the Secretary.’”

Essentially, if you are in the U.S. without permission, that is considered unlawful presence, including if you stay beyond the time your permission to be in the U.S. has ended.

Penalties for Unlawful Presence in the U.S.

One serious consequence of unlawful presence is becoming inadmissible for entry into the United States. This means you will not be able to enter the country for some time. Because many people must apply for a green card in a U.S. consulate overseas, which necessitates leaving the U.S., this can be a bar to getting a green card because you may not be permitted to return.

Grounds of Inadmissibility

The length of time you will be inadmissible to the United States depends on the length of your unlawful presence in the U.S. You may be subject to either a three-year ban, a 10-year ban or a permanent ban.

Three-Year Ground of Inadmissibility

If you were unlawfully in the country for more than 180 consecutive days and then left voluntarily rather than being subject to deportation, you could face a three-year ban on re-entry.

10-Year Ground of Inadmissibility

If you were in the U.S. unlawfully for more than one year and left for any reason, including being deported, you could be subject to a 10-year ban.

Permanent Ground of Inadmissibility

If you were unlawfully present in the U.S. for more than a year and voluntarily left or were ordered removed from the U.S. and then tried to return to this country without being legally admitted, you could be barred for life from coming to the United States.

Exemptions From Unlawful Presence

There are some exceptions to the general rule that you will be subject to a ban if you are unlawfully present for too long. Specifically:

• No portion of the time you were under 18 years old will count in determining the length of unlawful presence.
• If you have a pending asylum application, you won’t be considered unlawfully present unless you engage in unauthorized employment. You are considered in lawful status as soon as your asylum claim is granted.
• If you are admitted as a refugee, you are not considered to be unlawfully present until your refugee status is terminated
• If you are a beneficiary of family unity protection under section 301 of the Immigration Act of 1990, you will not be considered unlawfully present during that time as long as your application for family unity is ultimately approved.
• Battered women and children entitled to protection under the Violence Against Women Act will not be considered unlawfully present if they demonstrate a substantial connection between the unlawful presence and the abuse.
• Human trafficking victims who can demonstrate the trafficking was a central reason for their presence in the U.S. are exempt from being considered to be in unlawful status.

Overstay Forgiveness Eligibility

You may be able to obtain a waiver if you were deemed inadmissible in the following situations:

• You are applying for temporary protected status.
• You are outside the U.S., you applied for an Immigrant, K, or V nonimmigrant visa.
• You’re applying for adjustment of status under the Haitian Refugee Immigration Fairness Act or Nicaraguan Adjustment and Central American Relief Act.
• You’re a self-petitioner applying for an immigrant visa or adjustment of status under the Violence Against Women Act.
• You have T nonimmigrant status and are applying for an adjustment of status.
• You are a Special Immigrant Juvenile with an approved I-360 form and are applying for adjustment of status.

The specifics of how you apply for a waiver of inadmissibility will depend on what immigration benefits you are pursuing. In any case, you must show that a qualifying relative, such as a spouse or parent, would suffer extreme hardship if you are not allowed into the country.

Showing extreme hardship can be challenging, as you must do more than just demonstrate that your relative would be sad or upset. You may need to show severe emotional, medical or financial consequences to have your waiver granted. For example, you could show that you must serve as a full-time caregiver to a medically fragile parent in the U.S. or that you must provide financial support to your spouse by working for your U.S. employer.

It’s also important to know that your children are not eligible relatives that could entitle you to visa overstay forgiveness.

Overstay Application Process

To apply for visa overstay, you will use Form I-601. You should gather your required documents before submitting, including:

• Evidence of your family relationship with a relative who is a U.S. citizen or lawful permanent resident.
• Evidence that your inadmissibility would cause extreme hardship to that relative.

You must provide all of the requested information on the form, including:

• Your immigrant benefit category.
• What grounds make you inadmissible.
• Your contact details, including your mailing address and physical address.
• Information about past entries into the United States.
• Biographic information.
• A full explanation of the conditions that you were told made you inadmissible.
• Information about your qualifying U.S. relatives, including their full name, contact details and physical address.
• Information about other relatives you have with ties to the United States.
• The contact information of your interpreter, if applicable.

Frequently Asked Questions (FAQs) About Visa Overstay Forgiveness

What happens if your Visa expires before your Green Card status is determined?

What happens if you leave the U.S. while waiting for your Green Card?

Who can adjust your status after a visa overstay?

Can the bar to re-entry to the U.S. be waived if you overstay your visa?

Can I come back to the U.S. after overstaying?

How can I fix a U.S. visa after an overstay?

Will I be deported if I overstay?