It is important to understand the definition of "overstay" in the immigration context. Overstay may lead you to be illegal in the U.S. and can negatively affect your U.S. immigration process in the future.
Overstay
Overstay applies when you are admitted to the U.S. within a period of time that is stated on your I-94*** and you stayed over that period. Overstay is the most common reason that leads to become “out-of-status.”
If coming with a student visas and exchange visitor visa (F & J visa), you may be admitted with a D/S (Duration of Stay) on your I-94 (instead of a specific date). In this case, the duration of stay is listed on Form I-20 or Form DS-2019. Although a stay beyond the date listed on those forms is considered a violation of status, it is not considered to be an overstay. A person with a D/S I-94 will be considered an overstay only if:
- During the adjustment of status process, USCIS determines that there is a status violation.
- During the removal proceedings, an immigration judge finds that that person has violated status.
***In recent years, U.S. Custom and Border Protections (CBP) has automated the form I-94 at air and sea ports of entry. Thus, people will instead receive a CBP admission stamp on their travel documents. To obtain a copy of I-94, you can go to www.cbp.gov/I94.
What will happen if I overstay?
- If you overstay in the U.S. for less than 180 days, leaving the U.S. will not trigger any bars to your reentry. However, your nonimmigrant visa will be canceled and you will be restricted to apply for future non-immigrant visas.
- If you overstay in the U.S. in between of 180 days and 365 days, you will have a three-year bar on re-entry.
- If you overstay in the U.S. for more than 365 days, you will have a ten-year bar on re-entry.
How can I avoid overstaying?
1. You should leave the U.S. on or before the date stated on the admission stamp of your passport (or Form I-94).
3. If because of some reasons, you would like to remain in the U.S. longer than the time allowed, you should apply for “extension of visa” “change of status, or “adjustment of status”.
Example:
Michael had a valid B-2 Tourist Visa. He arrived to the U.S. on May 16, 2013 by plane. At the port of entry, Michael got an admission stamp on his passport with a date: November 15, 2013. It means that Michael can stay legally in the U.S. until November 15, 2013.
If Michael wants to stay longer, he needs to apply for “an extension of stay” “change of status” or “adjustment of status” and make sure that USCIS receives his application before or on November 15, 2013. Otherwise, Michael will overstay during his remaining time in the U.S.
Tip: it is better for Michael to submit, for example, his change of status through another visa before November 15, than on November 15 (but should not submit his visa change of status too soon).
For more information about overstay and how to extend your stay in the U.S., please consult an immigration lawyer.
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What can a person do if they have D/S on the I-94 and have not Left the country on the end date of the DS-2019 and have not done anything to like applying for extension for USCIS to deem it an overstay but in actuality have overstayed for 3years. What road can they take?