Can You Be Detained: What Happens if You Overstay Your Visa?

January 26, 2021

Action Immigration

There are more than 50 types of visas for entering the U.S. Which visa you get depends on why you are entering the country.

When you are given a visa, you’re also given an I-94 Form. This form states your visa expiration date; you are expected to leave the U.S. before this expiration date.

If you don’t leave the U.S. by this date, you will have overstayed your visa.

But what happens if you overstay your visa? Keep reading to find out.

You Can’t Change Your Status or Extend Your Stay

You can apply to the USCIS to change your visa status or extend your stay in the U.S. You have to do this before your visa expiry date. You’ll then be able to stay in the U.S. until a decision is made.  

However, if you overstay your visa, you can’t apply to change your status or extend your stay. So if you want to stay in the U.S. for longer than your visa allows, it’s recommended that you apply at least 45 days before your expiration date.

Your Visa Becomes Void

If you stay in the U.S. beyond your visa expiration date, your visa automatically becomes void. You must return to your country of nationality to get a new visa; you can't apply at a consoluate that is closer to the U.S.  

There are exceptions to this rule in extraordinary circumstances. However, it should be assumed that you would need to travel to your home country to secure a new visa.

You Won’t Be Allowed Back Into the U.S.

If you overstay your visa, you may not be allowed back into the U.S. This depends on how long you have remained in the U.S.

Can Return

You should still be able to return to the U.S. if you stay in the U.S. for less than 180 days after your visa expires, and you leave before formal removal proceedings begin.

However, when you do return to the U.S., the border officials will be able to see that you previously overstayed your visa. They do have the authority to prevent you from entering the country if they think you may overstay your visa again.

Banned for Three Years

You may be banned from reentering the U.S. for three years. This happens if you stay in the U.S. for more than 180 days but less than 1 year after your visa expiration date, but leave the country before formal removal proceedings begin.

Banned for Ten Years

You can be barred from reentering the U.S. for up to ten years. This may happen if you stay for more than 1 year after your visa has expired, but you leave before removal proceedings start.

Permanently Banned

You can be permanently banned from going back to the U.S. This can happen if you stay in the U.S. for more than 1 year after your visa has expired, or if you are deported and try to reenter without inspection.

There are some exceptions to this. For example, a person who is the victim of battery or extreme cruelty by a family member (a VAWA self-petitioner) may not face these consequences.  

You Are Detained by ICE

In some circumstances, the U.S. Immigration & Customs Enforcement (ICE) may contact you if you have overstayed your visa. You might be asked to attend a meeting at a local ICE office.

Your fingerprints will be taken, and you will be served with immigration documents. This will begin removal/deportation proceedings.

Depending on your circumstances, ICE officials may allow you to return home, and attending your hearing at the Immigration Court when it is scheduled. However, they may decide to detain you.

If you can secure an immigration bond, you can be released until the date of your hearing.

The best thing to do is to contact an immigration lawyer before your hearing. They’ll be able to gather your defense to challenge deportation, or determine if you qualify for a waiver.

What Happens if You Overstay Your Visa

There are a number of things that can happen if you overstay your visa, depending on your individual circumstances.

Being detained by ICE is the worst-case scenario. If this has happened to you or a loved one, contact us now to explore your options.

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