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Nisha Jones, Esq.
Nisha Jones, Esq., Lawyer
Category: Immigration Law
Satisfied Customers: 489
Experience:  Managing Attorney at a Law Firm
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I wonder how serious it is to overstay on your visa waiver

Customer Question

Hi! I wonder how serious it is to overstay on your visa waiver program and how hard is the to apply for another visum after u do so?
Submitted: 8 months ago.
Category: Immigration Law
Expert:  Nisha Jones, Esq. replied 8 months ago.

Good morning! I am a Criminal Defense and Immigration Law attorney and former Prosecutor for the State Attorney's Office. I'll be answering your questions today, please understand this is for informational purposes only, and we do not currently have an attorney-client relationship. Please allow me just a few minutes to prepare some information for you, thank you!

Customer: replied 8 months ago.
Okey thank you
Expert:  Nisha Jones, Esq. replied 8 months ago.

Of course, happy to help. So the short answer is it depends. Specifically it depends on a couple of things.

First, it depends on how long you overstay:

"Overstaying the period of authorized stay may result in the accrual of "unlawful presence." After accruing sufficient unlawful presence, you may be barred from re-entering the U.S. for up to 10 years.

  1. The Three Year Bar: Persons who overstay in USA for more than 180 days but less than one year after their authorized period of stay has expired, and who leave the U.S. prior to the institution of removal proceedings, are barred from reentering the U.S. for three years from their date of departure.
  2. The Ten Year Bar: Persons who overstay in the U.S. for more than one year after their authorized period of stay has expired, and who leave the U.S. prior to the institution of removal proceedings, are barred from reentering the U.S. for ten years from their date of departure."

Second, it depends on your status. You may receive an overstay waiver making the consequences less serious if you fill the following criteria:

"

3 or 10 Year Bar of Inadmissibility: Waiver For Overstaying Visa

1. Visa Overstay Waiver For Nonimmigrants

The regulations do not include a specific waiver of the three or ten year bar for nonimmigrant visa applicants.

The immigration regulations do not, however, preclude a nonimmigrant from applying for a general waiver under section 212(d)(3).

Section 212(d)(3) makes available to nonimmigrants a general waiver for most grounds of inadmissibility.

2. Visa Overstay Waiver For Immigrants

The regulations provide a specific waiver for the three or ten year bar for foreign nationals who are the spouse, son or daughter of a US citizen or permanent resident.

The visa overstay waiver is not available to foreign nationals who only have children who are US citizens or permanent residents.

To obtain the waiver for overstaying visa, the foreign national must show that their US citizen or permanent resident spouse or parents will suffer 'extreme hardship' if the foreign national is not allowed to return to the US. 'Extreme hardship' to the foreign national himself is not recognized for the purposes of the waiver."

In summary, and with a few additional warnings:

  • Visa overstays may be barred from returning to the U.S. for ten years or three years depending on the period of overstay or "unlawful presence". (what I described above)
  • Visa overstays may be restricted from applying for Extension of Stay or Change of Status.
  • Visa overstays will have their existing visa automatically revoked or cancelled., even if overstayed for just 1 day.
  • Visa overstays are generally unable to obtain a new visa except in their country of nationality.
  • Visa overstays may not be able to Adjust Status in the U.S. even if otherwise eligible."

I recommend calling an immigration attorney that is in your area, most of them offer you free consultations and can help you the details of your specific Visa. I am sorry the law (and USCIS) is not more forgiving on these issues, but I hope that you are able to get this issue resolved.

I hope that helps! Please let me know if you have any other questions. Also, please take a moment to rate me using the stars as this is the only way experts are compensated for our time here on 'just answer'. It doesn't cost you anything to rate me, and we can still continue our conversation for free after. Thanks!

Customer: replied 8 months ago.
Okey so I "only" overstayed my visum with 20 days. It was the visa waiver program and I know now have to apply for a visum to enter again. But what are the requirements to get a visum as easy as possible? I am put of the state's no immigration lawyer around here.
Customer: replied 8 months ago.
Okey so I "only" overstayed my visum with 20 days. It was the visa waiver program and I know now have to apply for a visum to enter again. But what are the requirements to get a visum as easy as possible? I am put of the state's no immigration lawyer around here.
Expert:  Nisha Jones, Esq. replied 8 months ago.

I can let you know what to do if I know what type of visa you had. Was it an immigrant or non-immigrant visa? Thanks.

Expert:  Nisha Jones, Esq. replied 8 months ago.

Hi Amanda, I got your response in the other thread that you were on an ESTA visa waiver, here's the information I shared. I hope this helps!

Even though you only overstayed your visa waiver by 20 days, you won't be able to get an extension under this category because they are not offered by USCIS. Also, you will most likely not be able to be granted the ESTA waiver again once you return home and try to re-apply. The reason is that these waivers are not granted again to individuals who overstayed, even if it was just for one day.

What you'll need to do is apply for a B2 visitor visa. You should have no problem being approved for it, and even though you overstayed on the ESTA, it won't affect you getting approved for the B2. Here's a link to the travel.gov website that tells you all the steps to apply for the B2:

https://travel.state.gov/content/visas/en/visit/visitor.html

Also, just in case you need this information sometime in the future, the form you need fill out for applying for a B2 visa extension is Form I-539.

I hope that helps! Please let me know if you have any other questions. Also please don't forget to take a moment to rate me using the stars. Thank you!

Expert:  Nisha Jones, Esq. replied 8 months ago.

Hello, the F1 visas are not guaranteed to be granted, but they are generally given as a means to study here in the US. There is a presumption from USCIS that you will return to your country after your studies are completed, so it is a nonimmigrant visa. If you were denied for the reason of showing a lack of connection to your country, the problem is most likely that USCIS is concerned you may be trying to move here permanently and that you DO NOT have an intention of returning to your country after your studies are completed.

If you apply for the B2 visa though, I am certain it should be granted to you, and depending on what you want to study, the B2 visa also allows you to do some study programs for "recreational purposes" (meaning less intensive degree programs).

I hope that helps! Again, please kindly take a moment to rate me using the stars as this is the only way I am compensated for my time here on 'just answer'. It's free of charge to you, and we can still continue to communicate for free after. Thank you.

Customer: replied 8 months ago.
do you think the fact that I got denied a visa is gonna be a disadvantage for me?
Customer: replied 8 months ago.
if I never got a visum denial you would still recommend me to apply for the b2 because it's "easier' to get? and yes the school has a shorter program that I can take! Thank you so much
Expert:  Nisha Jones, Esq. replied 8 months ago.

Yes, I definitely recommend applying for the B2 visa instead since you're basically guaranteed to get it, and you can still take the program that you're interested in. Best of luck to you, and please don't forget to take a moment to rate me using the stars (it's the only way we get credited for our time). Thanks so much!

Expert:  Nisha Jones, Esq. replied 8 months ago.

Hi! Just checking in to see if you have any more questions? I hope I was able to address all of your concerns. Please let me know, thanks!

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