Visas, Entry, Status and Length of Stays

 

A visa is an entry document that allows a visitor or immigrant to present themselves to Customs and Border Protection (CBP) at the US port of entry (POE) at airports, sea ports or land border crossings for inspection to be admitted into the US. After inspection, CBP will then stamp a date in the passport giving the visitor a specific time frame that they may stay in the US in a specific status or they may stamp D/S (duration of status).

At inspection, if CBP determines that you are trying to do something not permitted by your visa, if they think you’re lying or if they have adverse information, they may deny you entry into the US and have you physically removed from the POE on an order of Expedited Removal.  If you are sent off under expedited removal, you will be barred from re-entering the US for a period of 5 years unless you obtain a waiver or persuade CBP to rescind their expedited removal order.

Visitor visas (B1 business visitor and B2 tourist/medical visas) have a maximum status of 6 months in the US. CBP may give you less time based on their sole discretion. K1 fiancé visas are allowed 90 days in which to marry and begin adjustment of status. Some J1 visas are allowed a stay of 2 years. Some visas allow for an indefinite stay and are marked D/S which means that the alien will not accrue unlawful presence if they maintain that status during their time in the US. Students (F1 visas) most frequently receive this notation. If a student drops out of school and don’t obtain or renew their status, they will start to accrue unlawful presence in the US.  If you engage in activities not authorized by your visa, you will violate your status and may incur penalties.

UNLAWFUL PRESENCE


U.S. immigration laws contain various penalties for people who overstay a visa and accrue unlawful presence in the US.  The penalties depend on the length of the unlawful presence in the US.  Waivers of the unlawful presence other inadmissibility issues are extremely complex issues and require competent legal help.

The U.S. immigration laws are very strict on this matter. Overstaying by even 1 day (i.e. stayed longer then the permitted departure date on your I-94), will initiate the accrual of unlawful presence in the US. You will have problems applying for a new visa at any consulate outside of your home country.

Applying for an extension of your status or change to a different status suspends your status until a final decision is made on your application. However, if the application is subsequently denied, the days of one’s overstay will be backdated to the original expiration of your status. All the time past the date of the permitted departure date will be counted towards the duration of your overstay. Conversely, if your application for a change / extension of status is approved, you will not be considered to have overstayed and no unlawful presence will have accrued. It is important to note that USCIS must receive your application before your status expires.

 

PENALTIES FOR OVERSTAYING AND ACCUMULATING UNLAWFUL PRESENCE   


 

Congress instituted severe penalties for overstaying one’s visa to encourage visiting foreigners to self-deport.  The date of one’s permitted departure date is indicated on Form I-94 Arrival/Departure record (usually in the form of a stamp). Customs and Border Protection previously issued paper I-94 slips with status expiration dates but they now merely stamp the expiration date of visitor’s status in the passport now.  If you are confused about the length of time you are allowed to stay in the US or if you want to find a record of your entries into the US, you may use this website: https://i94.cbp.dhs.gov/I94/consent.html to find your electronic I-94.

Many aliens conflate the expiration date of their visa and the expiration of their status. The expiration date of a visa is only an indication of the last date upon which you could have used it to enter the U.S. The date stamped on your passport upon entry (I-94) is the last date you will have status in the US based on your entry status of visa. If you stay beyond your permitted status date, you may begin to accumulate unlawful presence in the US.

 Overstays of Less than 180 days:

  • Not legally inadmissible;
  • You can be granted another visa, or even a U.S. green card;
  • However, be aware that it will be hard to explain consular office that you will leave when your permitted stay is over next time in case if he/she issues you a visa, which may result in denial of visa (nonimmigrant);

Overstays of More than 180 days, but less than 1 year:

  • May face severe penalties
  • Simultaneous accrual of “unlawful presence” in case if you have not applied for a change / extension of status
  • Must leave before any formal removal proceedings are executed against you (i.e. deportation)
  • Inadmissibility after departing – for 3 years

Overstays of More than 365 continuous days:

  • Must leave before any formal removal proceedings are executed against you (i.e. deportation)
  • Inadmissibility after departing – for 10 years

Overstays of More than 365 days in aggregate, or deported from the U.S., and tried to enter the U.S. without inspection:

  • Possible ban from reentry for life
  • Can request permission to reapply for reentry after 10 years

 

EXCEPTIONS FOR THE ABOVE OVERSTAY PENALTIES


 

There is no accrual of unlawful presence for:

  • Persons under age of 18 years old
  • Persons with bona fide pending asylum application on file with USCIS
  • Person is a beneficiary of the family unity program (for close relatives of people who received green cards as farmworkers or under the amnesty program of the 1980s)
  • Person with pending application for either adjustment of status (a green card), an extension of status, or a change of status
  • Person is a battered spouse or child who entered on a nonimmigrant visa and can show a connection between the abuse and the overstay
  • A victim of trafficking who can show that the trafficking was at least one central reason for the unlawful presence, or
  • Person with a received protection via Temporary Protected Status (TPS), Deferred Enforced Departure (DED), Deferred Action, or Withholding of Removal under the Convention Against Torture.

Also, if one has entered the U.S. on a student visa, the overstay begins when they stop studying or complying with the terms of their visa. However, students do not accrue unlawful presence until and unless an immigration official or judge has deemed them unlawfully present.

Consult with a lawyer in case if the laws or policy changes.

WAIVER OF 3 AND 10 YEAR TIME BARS


 

A waiver is available to people who are able to demonstrate that if not granted the requested immigration benefit, their spouse, parents or children would suffer extreme hardship. Extreme hardship is difficult to prove. Common or typical results of removal and inadmissibility do not constitute extreme hardship, and certain individual hardship factors are considered common rather than extreme.

These factors include:

  • economic disadvantage
  • loss of current employment
  • inability to maintain one’s present standard of living
  • inability to pursue a chosen profession
  • separation from family members
  • severing community ties
  • cultural readjustment after living in the U.S. for many years
  • cultural adjustment of qualifying relatives who have never lived outside the U.S.
  • inferior economic and educational opportunities in the foreign country, or
  • inferior medical facilities in the foreign country.[1]

 

Call Integrity Law Group today if you are considering applying for one of these waivers and let us help you assess your situation and help you gather documents and affidavits in support of your family’s claim to extreme hardship. Our number is 206-838-8118 or email msoi@integritylawgroup.net.

 

 

[1] Matter of CervantesGonzalez. Board of Immigration Appeals 22 I & N Dec. 560 (1999) at 568

 

Facebooktwittergoogle_plusredditpinterestlinkedinmail
Posted in Blog, Blog, Immigration and tagged , , , .