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The United States is a populous country. According to the 2020 census, there are over 330 million people in the country, which is probably slightly less than the true population.

In such a big country, how can the federal government keep track of all the visitors, immigrants, and noncitizens?

Can the U.S. government really tell if you’ve overstayed your visa?

The answer is complicated. It’s true that the government can’t keep perfect records of everyone who has overstayed their visa. But if you do overstay, it can lead to problems if you want to apply for permanent residence in the future, or leave the country and try to return to the United States..

From immigration attorneys Pelton + Balducci, here’s everything you need to know about overstaying your visa in the United States.

How you can tell if you overstayed your visa

Your I-94 travel record will tell you what your approved “duration of stay” is. You can access your I-94 through this website by entering your passport number and other personal information.

The duration of stay on your I-94 will tell you how long you can remain in the U.S. after you’ve entered. This is different from the expiration date on your visa, which tells you how long you can use that particular visa to enter the US.

If you remain in the U.S. past your authorized duration of stay, then you are violating the terms of your stay. This can lead to a number of consequences, which we’ll explain in the next section.

How the U.S. government can tell if you overstayed your visa

Generally, immigration authorities aren’t going to know the minute your visa expires that you’re still in the country beyond your authorized stay.

They usually keep records of when people leave the country by gathering information from airlines, other travel companies, and the Canadian and Mexican authorities.

So if you fly out of the country using a major airline a month after your stay expired, immigration authorities will likely have a record that you overstayed your visa by one month.

Leaving the country after overstaying your authorized stay as stated on your I-94 usually results in automatic revocation of your visa, meaning that you will have to apply for a new visa in your home country prior to returning.

In certain instances, it could also mean that you will be accumulating “unlawful presence”. If you acquire too much “unlawful presence”, you will become “inadmissible” (i.e., not allowed to come back) for a specified period of time.

Here are the time limits:

  • If you overstay your status for 180 days or less, you won’t be inadmissible when you leave, but you’ll still have to apply for a new visa. And visa approval is by no means automatic, especially when you have violated the terms of a prior stay.
  • If you overstay your authorization for more than 180 days but less than one year and then leave, you cannot return to the United States for 3 years. Now, in addition to applying for the visa, you’ll also have to apply for a “waiver” (i.e., legal forgiveness for the time you were in unlawful presence) if you want to come back to the U.S. within the next three years.
  • If you overstay your status for 1 year or more, you cannot return for 10 years without getting a waiver and reapplying for a visa.

Important: the rules around unlawful presence are really tricky and this description is basic. It’s not a statement of the law or legal advice. If you are dealing with overstay and unlawful presence issues, it’s extremely important to speak with an experienced immigration lawyer. 

Even if you don’t depart the country late, overstaying your status could potentially lead to consequences:

  • If you get in trouble with the law and law enforcement contacts immigration, the immigration authorities will realize that you overstayed your status. This could potentially lead to removal, or deportation proceedings.
  • If you are trying to apply for permanent resident status, overstaying your authorized stay could make the process a lot more complicated, and might prevent you from being eligible for a green card altogether.

However, there are certain ways to apply for a green card even if you have overstayed your status.

How to apply for a green card after you overstayed your status

If you have accumulated “unlawful presence” you may have to apply for a waiver abroad or wait out your period of inadmissibility of 3 or 10 years before you can return.

This can be an expensive, time-consuming, and disruptive process.

Some people can avoid these complications because they are eligible for “adjustment of status” despite their unlawful presence. “Adjustment of status” is a specific term in immigration law.

It means applying for a green card from within the United States. If you entered the U.S. legally, but you’ve overstayed your visa, you will need to meet certain requirements in order to apply for adjustment of status.

  • If you’re the immediate relative of a U.S. citizen (parent, child, spouse), you can generally apply for an adjustment of status, despite the fact that you have overstayed your visa.

Immediate relatives of U.S. citizens are probably the most common category of individuals who can apply for adjustment of status even though they overstayed their status.

Unfortunately, adjustment of status is generally not available to other family members of U.S. citizens or to family members of permanent residents who overstay their status.

Other family members of U.S. citizens and family members of permanent residents may still be eligible to apply for a green card if they overstay their status – but with some exceptions they’ll have to leave the United States and apply for a visa.

As noted above, if they have too much unlawful presence, they’ll also need to apply for a waiver.

Contact a Louisiana immigration attorney today

At Pelton + Balducci, we understand how complicated and intimidating this can all get. That’s why we do everything we can to help our clients understand the immigration process and fight for the lives they want in the U.S. Contact us today to schedule a consultation and talk about your situation.

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