Visa overstay

J.G. Azarcon, ESQ. By J.G. Azarcon, Esq.

A non-immigrant who remains in the U.S. beyond the period of his authorized stay will have his valid visa voided and will be barred from applying for another non-immigrant visa in consular posts other than the alien’s home country.

In the past, a tourist who remained in the US beyond the period of authorized stay and has found an employer petitioner for another non-immigrant status, i.e. H1B, had the option of exiting the US and appearing at US consular posts in Canada or Mexico as a third country national (TCN) to apply for a new visa and return to the US under a new non-immigrant status. The new amendments to the immigration laws have ended the practice of shopping for consular posts.

Another consequence for overstaying is the automatic voiding of the alien’s non-immigrant visa. For instance, an alien with a multiple entry visa valid for five years enters the US on February 15, 2000 as a B2 tourist. At the port of entry, he is issued an I-94 card indicating June 15, 2009 as the expiration date of his authorized stay. If the alien remains in the US beyond June 15 without an approved extension, his multiple entry visa will become void. Even if he voluntarily exits the US after June 15, he can no longer use the same multiple entry visa to reenter the US. If he has filed for an extension of stay before its expiration but departed the US after the expiration of stay but before the extension application was adjudicated, the alien may qualify for a waiver and reenter under the same visa.

A visa may also be voided even before the expiration of the date of authorized stay if there is a formal finding of a status violation resulting in termination of the alien’s period of stay. This adjudication may happen during the alien’s request for an immigration benefit, such as extension of stay, change of status or reinstatement.

Visas of non-immigrants granted D/S may also be voided when there is a formal finding of a status violation by the Service or by an immigration judge, resulting in the termination of the period of authorized stay.

With respect to the prohibition against third country processing, the amendment only covers overstays. It does not apply to aliens whose status have lapsed for reasons other than overstaying, i.e. accepting unauthorized employment, failure to maintain full time study, termination of authorized employment, etc.

With respect to prohibition from third country processing and automatic voiding of visas, relief may be available in the form of waiver applications. A timely filing of application for extension or change of status before the expiration of authorized stay would be very helpful in seeking a waiver.

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