Sources estimate there are about 11.2 million undocumented aliens currently living in the United States. Contrary to what many believe, not all of those individuals crawled on the desert floor in the dead of night or hid in the trunks of cars to cross the U.S. border. In fact, estimates suggest that 45% of the 11.2 million undocumented aliens currently present arrived in the U.S. legally on valid visas and overstayed their permitted length of authorized stay. Those who have overstayed or are about to overstay their visas, often ask, “What are the consequences for overstaying a visa? Will I be deported?” To answer those questions, this blog post lists and explains some of the possible repercussions of overstaying the authorized length of stay.
Individuals who were unlawfully present in the United States for a period of more than 180 days and less than 1 year and who voluntarily departed the United States, are inadmissible for a period of three years. 8 U.S.C. § 1182 (a)(9)(B)(i)(I). The unlawful presence time frame is not cumulative between multiple trips. Additionally, children do not begin accruing unlawful presence until they turn 18.
An alien who is unlawfully present for a continuous period of one year or more is subject to a 10-year bar. 8 U.S.C. § 1182 (a)(9)(B)(i)(II). As with the 3-year bar, children do not begin accruing unlawful presence until the age of 18. Accordingly, an individual who arrived in the U.S. as a minor will not be subject to the 10-year bar until he or she turns 19.
Some individuals may be subject to a permanent bar from entering the United States. This lifetime bar applies to those who have previously been unlawfully present in the United States for more than one year or have previously been ordered removed and then attempt to enter or enter the U.S. without being admitted. 8 U.S.C. § 1182 (a)(9)(C)(i). Unlike the 3 and 10-year bars, the period of unlawful presence for the purposes of this provision is cumulative across multiple trips. Note that even minor children may trigger the permanent bar.
For one, an alien who overstays past the permitted VWP period will no longer be eligible to participate in the VWP in the future, no matter the length of the overstay. Additionally, VWP entrants should be aware that they have waived their rights to contest the denial of later filed adjustment applications. A notable exception to this rule exists in the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington).
Aliens who pose danger to national security or are engaged in terrorism or espionage
Aliens apprehended at ports of entry while attempting to unlawfully enter the United States
Aliens engaging in gang activity
Aliens convicted of a felony or an aggravated felony
Aliens convicted of three or more misdemeanor offenses
Aliens convicted of a significant misdemeanor, such as domestic violence, sexual abuse, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, driving under the influence, or offenses for which the individual was sentenced to 90 days or more in custody
Aliens apprehended after unlawfully entering or re-entering the United States who were not physically present in the United States continuously since January 1, 2014
Aliens who have significantly abused the visa or visa waiver programs
Aliens who have been issued a final order of removal on or after January 1, 2014
It should be noted that many exceptions apply to the above rules and an alien subject to a bar of admission may nonetheless be admitted as an immigrant under certain circumstances. However, those who find themselves deciding whether or not to overstay a visa should consider the above rules. As always, it is best to consult a qualified immigration attorney before making the decision to remain in the U.S. past your authorized length of stay.
If you have overstayed your visa or find yourself in removal proceedings and would like to have your case evaluated, call 1-844-HOLBORN and one of our immigration attorneys will be happy to assist you.
Disclaimer: This post is meant for general informational purposes only, and it is not to be construed as legal advice. As with any laws, the information in this blog post may change at any time and may apply differently in different jurisdictions. The post may constitute Attorney Advertising as defined by the rules of professional responsibility of some jurisdictions. Holborn Law is based in Orange County and Riverside. The attorneys of Holborn Law APC are active members of the State Bar of California and licensed to practice law in California. All services relating to immigration and naturalization provided by Holborn Law APC are provided by active members of the State Bar of California or by a person under the supervision of an active member of the State Bar of California.