Many immigrants without lawful status first came into the United States with valid visas and stayed past the end of their approved visit. Under U.S. immigration law, there are consequences for people who end up overstaying their visa, including a bar from re-entering the country. If you apply for a green card after a visa overstay, a re-entry bar will significantly lengthen your application process or prevent you from applying altogether. You may be able to apply for a waiver that legally forgives your overstay so you can apply for a green card. In this article, we explain how to know if you’ve overstayed your visa, whether or not a pathway to a green card is available to you, and how to use waivers of inadmissibility for unlawful presence.
Written by Jonathan Petts.
Written May 24, 2022
How Do I Know if I Have Overstayed My U.S. Visa?
You have overstayed your visa if you have remained in the United States past your approved duration of stay. Your I-94 travel record has your approved duration of stay. Every foreign national who visits the United States has a Form I-94 to their name that details their arrival date and the date they’re expected to leave. This date is often different from the visa expiry date on the visa stamp you received in your passport.
The expiration date on your visa stamp indicates how long you can use that visa to enter the U.S. By contrast, the authorized stay date on your I-94 record specifies how long you can stay in the United States after you’ve entered. So your visa could be valid for many years, but your authorized stay for any trip could be for only a couple of weeks or months.
You can access your I-94 record on the U.S. Customs and Border Patrol (CBP) website if you don’t have a paper copy of it. You will be able to see your authorized stay information when you enter your passport number and other personal information.
What Is Unlawful Presence?
If you realize after looking up your I-94 arrival and departure record that you have been in the United States past your authorized stay date, you have begun to accrue unlawful presence. Unlawful presence refers to the amount of time you spend in the United States without lawful immigration status. Unlawful presence begins the day after your authorized period of stay expires.
If you came into the United States under the Visa Waiver Program (VWP), unlawful presence starts 90 days after your first day in the country. If you came into the United States on a nonimmigrant visa, unlawful presence begins 180 days after the date on your I-94 record.
There are consequences for accruing unlawful presence based on the length of your unlawful presence, including a 3-year bar or a 10-year bar from re-entering the United States after you leave. You also risk deportation when you are without lawful immigration status in the United States for any extended period.
What Is Illegal Entry?
You can also be unlawfully present in the United States if you entered illegally. Illegal entry means that you came into the United States without official authorization from the U.S. government, in the form of a valid visa or visa waiver, or that you were not inspected by border patrol officials when you entered.
Can I Apply for a Green Card if I Entered the U.S. Illegally?
It is complicated to get a green card if you entered the United States illegally. Generally, if you entered the United States illegally, you can only apply for a green card from your home country through a process called consular processing.
You can’t apply for a green card from the United States, called an adjustment of status. Sometimes, you cannot get a green card at all. For example, someone who enters the United States illegally multiple times will be deported and permanently barred from entering the country again. If you’re permanently barred, you can’t apply for a green card, U.S. citizenship, or other immigration benefits.
If you enter illegally and stay for less than 180 days, you will not face a re-entry bar when you go home to apply for a green card. But if you entered legally and stayed for more than 180 days, then you will face either a 3-year or 10-year bar when you go home to submit your green card application. If you’re a Deferred Action for Childhood Arrivals (DACA) recipient who applied for DACA more than 180 days after you turned 18 and never had Advance Parole, you’ll face a 3-year or 10-year bar.
What Are Bars to Entry?
In U.S. immigration law, bars of entry are penalties for people who have spent a period of unlawful presence in the United States. There are three types of re-entry bars: 3 years, 10 years, and permanent.
If you spend between 180 and 365 days of unlawful presence in the United States, you’ll face a 3-year bar. If you have one year or more of unlawful presence, you’ll receive a 10-year bar. If you have repeatedly entered the United States unlawfully, you will be permanently barred from returning to the country.
Can I Apply for a Green Card if I Overstayed my Visa?
Yes, you can apply for a green card if you overstayed a visa, but only if you meet very specific requirements.
Typically, you can’t apply for a green card from the United States if you don’t have valid (unexpired) immigration status. U.S. immigration law makes an exception for the immediate relatives of U.S. citizens, that is, the parents, children, and spouse of a U.S. citizen. If you’re an immediate relative of a U.S. citizen who entered legally (through a nonimmigrant visa, for example), you can apply for your green card by filing Form I-485, even if you overstayed a visa.
This exception does not apply if you’re an immediate relative to a U.S. permanent resident (green card holder). You will have to apply for a green card from your home country. If you’re subject to a re-entry bar, you’ll have to wait it out before you can return to the U.S. But you may also request that the U.S. government pardon your unlawful presence with a waiver of inadmissibility. More on this is below.
Can I Travel Outside the U.S. if I Overstayed My Visa?
If you do not have a pending green card application, you will not be able to enter the U.S. when you return. But if you have a pending green card application, you can travel out of the United States with Advance Parole. Advance Parole is a travel document that makes it possible for you to travel abroad without abandoning your green card application. If you entered the United States legally, overstayed your visa, and your green card sponsor is a U.S. citizen, then you can apply for Advance Parole. You’ll be able to go abroad and return to the United States without facing re-entry bars.
It would be best if you were very cautious in doing this though, as this exception for immediate relatives of U.S. citizens may change at any time and is not applied in the same way throughout the United States. The policy may change suddenly when you’re abroad, and you may find yourself unable to get back to the United States to finish your green card application. For this reason, if you overstayed a visa, it’s a wise idea to hold off on traveling until you receive your green card.
What Are Waivers of Inadmissibility?
A waiver of inadmissibility is a common name for Form I-601, Application for Waiver of Grounds of Inadmissibility. This form is a legal request you can make to the U.S. government to pardon the re-entry bar you’re facing for unlawful presence. To apply for the waiver, you’ll have to prove to USCIS that your U.S. citizen or lawful permanent resident relative will experience “extreme hardship” if you have to wait out your re-entry bar. For example, if you’re a parent who overstayed a visa, the burden of childcare could be tough on the parent you’re leaving behind in the United States.