The focus of this post will be on how an overstay can impact someone’s ability to apply for permanent residence.
The consequences of your overstay will depend on whether you entered via a regulated port of entry and the amount of time you overstayed.
The general guidelines are below:
3 year bar from entering the United States
- if you’ve accrued over 180 days but less than a year of unlawful presence and you’ve left the United States prior to removal proceedings.
- If you leave the United States after the removal proceedings begin, there’s a chance you may not be deemed inadmissible. This depends, however, on the outcome of the proceedings.
10 year bar from entering the United States
- if you have accrued more than 1 year of unlawful presence during one continuous trip and have already left the country.
- It does not matter in this case if you’ve departed before or after the beginning of removal proceedings.
Permanently inadmissible from entering the United States
- if you have accrued a total of more than 1 year of unlawful presence over the course of several trips and have left the country.
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When the permanent bar applies, the person is ineligible to:
- Receive an immigrant or nonimmigrant visa to come to the United States
- Adjust status in the United States to become a permanent resident
- Be admitted to the U.S. at a port of entry
- Note that, in this case, If you’ve already been out of the country for 10 years and you’d like to gain entry into the United States, you may request permission to reenter by submitting Form I-212 (officially called the “Application for Permission to Reapply for Admission into the United States after Deportation or Removal”).
- In some cases, you may also be able to obtain a waiver using Form I-601 (officially known as the “Application for Waiver of Grounds of Inadmissibility”).
When does "unlawful presence" begin to accrue?
- It doesn’t begin to accrue until the day after the I-94 or authorization expires.
- For the three and ten-year bars, periods of unlawful presence are not counted in the aggregate - rather, each period of time is counted separately.
- Example: if you overstay for 3 months on one visit, and overstay for 4 months on another visit, you haven’t triggered the three-year bar because each period of overstay was less than 180 days.
- Those who are unlawfully present in the U.S. for more than 1 year in the aggregate during 1 or more stays in the U.S., and who then re-enter or try to re-enter without being admitted or paroled, are subject to a permanent bar.
- After the three- or ten-year period has passed, the person is no longer inadmissible, but may still have a difficult time entering the United States.
Can I still apply for permanent residence if I have overstayed my visa in the United States?
From inside the United States
- If you overstayed after legal entry, and are married to a United States citizen, you may still be eligible to apply for adjustment of status. This process allows you to transition to permanent residence while remaining in the country. It is important to note that even short overstays can impact future visa applications, and we recommend that you obtain tailored legal assistance to deal with this situation.
From outside the United States
- If you are subject to re-entry bars or otherwise inadmissible, you will need to apply for a waiver to be able to return to the United States.
What if I am married to a U.S. permanent resident and I overstayed my visa in the United States?
- This will create additional challenges for you because there are limits on visas for spouses of U.S. permanent residents and so your ability to adjust your status may be impacted by a lack of visa availability, unless your spouse becomes a U.S. citizen. In most situations, consular processing is the recommended route.
How do I apply for a provisional waiver if I am inadmissible to the United States?
Persons who are applying for an immigrant visa who are subject to one of the grounds of inadmissibility need to apply for a provisional waiver (I-601 or I-601A). The I-601 and I-601A serve the same purpose - namely, they permanently fix the inadmissibility issue.
The traditional I-601 process can be used for several types of inadmissibility (including unlawful presence),but the I-601A is only available for unlawful presence bars and must be applied for from within the U.S.
For both the I-601 and I-601A processes, the crux of the application focuses on proving that a qualifying family member will suffer extreme hardship if the applicant is not permitted admission or readmission to the U.S.
The primary differences between the I-601 and I-601A processes are outlined below:
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I-601 Process (traditional process) |
I-601A |
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Use with Consular Processing AND Adjustment of Status |
Use ONLY for consular processing, but apply from within the United States. Essentially, persons with unlawful presence are undertaking the consular process but are doing it all from within the U.S. They only leave the U.S. once their waiver is approved in order to attend a consular interview in their home country. |
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Qualifying family members for extreme hardship assessment:
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Qualifying relatives for extreme hardship assessment must be U.S. citizen spouse or parent. |
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With consular processing, file AFTER consular interview and formal finding of inadmissibility |
File BEFORE leaving the U.S. to attend consular interview |
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With consular processing, wait for a decision on the waiver from OUTSIDE of the U.S. |
Wait for a decision on the waiver from INSIDE the U.S. before leaving to attend your consular interview |
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Can waive several grounds of inadmissibility:
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Only waives three or ten-year unlawful presence bars. |
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Appeal or motion to reopen available; can also refile |
No appeal or motion to reopen available, but can refile |
How can an immigration lawyer help me if I have overstayed my visa in the United States?
We can help you understand your options better. We can explain the impact of your overstay and create a plan of action to move forward. To get started, please schedule a strategy session.