Published: March 6, 2025
Visas have a limited validity period. Once a US visa expires, foreign individuals lose their legal right to reside in the country. Under Section 222 (g)(1) of the Immigration and Nationality Act (INA), visas will become void if nonimmigrants remain in the US beyond the authorized period. This can substantially impact one’s ability to re-enter the US in the future.
Despite the risks, many nonimmigrants overstay their US visas. According to the Entry/Exit Overstay Report in FY 2023, around 510,363 individuals were suspected of overstaying their visas within the US at the end of the year. Meanwhile, an estimated 54,792 were outside the country when their visas expired.
The duration of the visa overstay can affect your eligibility to secure a green card. Hence, it’s always beneficial to proceed cautiously and with the assistance of an experienced Los Angeles immigration lawyer before submitting any application.
For a starter, we’ll explore the possible options to qualify for an employment-based green card after exceeding the authorized period of stay in the US. Before discussing that, understand the consequences of a visa overstay and how they can complicate your efforts to acquire a permanent residency.
Immigration Consequences of Overstaying Your Visa
An overstay typically occurs when you remain in the US past the authorized duration of your visa. Your visa’s validity may be several years but it doesn’t govern how long you can legally stay in the US. It only authorizes you to enter the country during that period.
The immigration officer will provide you with an Arrival-Departure Record form when visiting the US. It specifies how long you’re allowed to stay in the country once you have entered. Remaining beyond that authorized stay date can lead to unlawful presence.
Under INA 212(a)(9)(B)(ii), you begin accruing unlawful presence on the day you’re present in the US without proper admission or parole, or you stay in the country after the authorized duration expires. Unless exceptions apply, overstaying your visa results in the accrual of unlawful presence and the following consequences:
Less than180 days
Generally, an overstay of less than 180 days doesn’t constitute grounds for future inadmissibility. However, you must leave the US before accumulating 180 days of unlawful presence to avoid being subjected to severe penalties.
Additionally, applying for a nonimmigrant visa often requires proof of intent to depart after the authorized stay. Thus, while a short-term overstay doesn’t prevent you from acquiring a new visa, you may find it more challenging to convince the consular officer to prove your intent to leave the country.
180 days to less than 365 days
Overstaying your visa for over 180 days and less than 365 days (one year) of unlawful presence will incur a three-year reentry bar to the US. That means you will be inadmissible for three years but only if you voluntarily leave the country before facing deportation proceedings. Otherwise, different rules may apply, potentially resulting in more severe penalties.
Over 365 days
Accruing unlawful presence over 365 days (one year) can bar you from returning to the US for ten years. The ten-year reentry bar also applies even when you depart voluntarily before any deportation proceedings are initiated.
It can be difficult to determine if you’re inadmissible after accumulating unlawful presence. Hence, consulting an immigration lawyer is crucial to get tailored guidance on your specific situation.
Employment-Based Green Card Options After a Visa Overstay
Overstaying your visa can create uncertainty about your future immigration status. Besides being potentially subjected to reentry bans, deportation, and loss of immigration benefits, it can make applying for green cards and adjusting your status more complex. Below are some employment-based green card options you can consider with a lawyer’s legal guidance.
Adjustment of status
The adjustment of status process can be an alternative if you’ve overstayed your visa and remain in the US. It allows you to secure a green card without departing the country. However, adjusting your status is only possible for overstays that are under 180 days. Exceeding that duration can complicate your application. Likewise, you need a qualifying sponsor to file a petition on your behalf.
Employer sponsorship
The employer can submit the Immigrant Petition for Alien Worker on your behalf if you’re still in the US. But suppose you’re subject to a reentry bar because of accruing over 180 days of unlawful presence. You may need to depart the country and complete the immigration process through consular processing at a US embassy abroad.
EB-1 and EB-2 categories
Depending on their skills and qualifications, you may be eligible for EB-1 or EB-2 visa categories despite a visa overstay. These pathways let you file a petition without needing an employer sponsorship, simplifying the immigration process for qualified applicants. Your eligibility depends on the specific criteria established by the United States Citizenship and Immigration Services (USCIS).
Unlawful presence waivers
You can secure a waiver of unlawful presence if you’ve overstayed your visa and are pursuing a green card application. The waiver enables you to overcome the bar from reentry and potentially acquire a work visa or green card. However, it doesn’t permit you to stay in the US indefinitely.
Instead, it reduces the duration you must spend abroad and the penalties associated with unlawful presence. It’s worth noting that the approved waiver will only take effect after leaving the US and attending your visa interview at a consulate.
Resolve Immigration Concerns With ALG Lawyers
Overstaying your visa presents significant challenges to securing an employment-based green card. Although complex, several pathways are open to fix overstay problems and protect your eligibility to reside and work in the country lawfully.
Still, each case is different and necessitates careful assessment. Our team at ALG Lawyers can help you understand your alternatives and increase your chances of a positive outcome. Call us now to discuss your situation in detail and resolve immigration concerns.
(Please note that this article does not create an Attorney-Client relationship between our law firm and the reader and is provided for informational purposes only. Information in this article does not apply to all readers. Readers should not rely on this information as legal advice and should seek specific counsel from a qualified attorney based on their individual circumstances. Thank you.)