Overstaying an EVUS or a US Visa

Overstaying an EVUS or a US Visa

Visiting the US on a tourist visa or having registered for EVUS grants a citizen a determined amount of time to stay within the US territory.

Exceeding the allotted time —which is known as overstaying the authorized period of stay stated in your visa— is not overlooked by authorities and can often entail serious consequences.

Read our expert immigration advice where you will learn (table of contents):

Authorized period of stay

A Chinese citizen’s authorized period of stay in the US is determined by the type of visa they hold on their passport. Chinese nationals holding a B1, B2 or a combined B1/B2 visa are permitted to stay for a maximum period of 90 days on US soil.

Although visitor B1, B2 or a combination of the 2 have a 10-year duration, this does not allow holders to stay in the United States for 10 years. It means that your visa is valid for a total of 10 years, so long as each visit lasts 90 days or less.

Once your visitor visa is granted, you are required to enroll in the EVUS before you travel so that you are allowed to enter the United States. Visitor visa holders from the People’s Republic of China who do not enroll with the EVUS are denied entry upon arrival.

Expected Departure Date from the USA

Knowing when an EVUS holder is expected to depart from US territory is of vital importance in order to avoid a visa overstay.

This can seem confusing since there are different expiration dates on their B1/B1 visa, and on their EVUS.

However, the one you are looking for in this instance is the date shown on your Form I-94 Arrival/Departure Record. That is a different date from the expiration date of your visa and from your EVUS validity date, which merely state the last date upon which you could have used those documents to enter the US.

If you are wondering how to find your expected departure date from the United States when traveling on EVUS, you will need to count forward starting from the date on your I-94 form. You can access your electronic I-94 record online by visiting the US Customs and Border Protection (CBP) website.

What happens if you overstay a US visa or EVUS?

Staying beyond the date an EVUS holder is expected to depart from the US under the terms of a B1/B2 visa can bring serious consequences, such as:

  • The holder’s visa being automatically voided, revoked, or canceled
  • The visitor being restricted from applying for Extension of Stay, Adjust Status or Change of Status, even if otherwise eligible
  • The citizen’s inability to apply for a new visa at any consulate outside of their country of nationality
  • The individual being barred from returning to the United States for 3 years or 10 years, and, in some cases, indefinitely

The consequences of visa overstay differ depending on the following, which will be explained in more detail:

  • How long you exceeded your permitted sojourn or your period of overstay
  • Whether your circumstances make you eligible for an exception
  • Whether you accrued "unlawful presence"

The above consequences only apply for individuals that depart the United States and attempt to return. In certain situations, foreign nationals eligible for green cards can avoid the time bars by adjusting status within the US by submitting their paperwork to USCIS and attending an interview within the United States.

Consequences of Overstaying a US Visa

Overstaying a US visa is a civil violation that gets handled in immigration court proceedings. This violation entails consequences and penalties. Nevertheless, overstaying is not a violation of federal criminal law.

Exceeding the period of stay authorized by your visa may result in the accumulation of “unlawful presence”. Once a visitor has accrued sufficient unlawful presence, they may be barred from re-entering the US.

Unlawful Presence in The USA

Foreign citizens staying beyond their expected departure date will accrue unlawful presence that may entail a 3-year or a 10-year bar, unless:

  • They are under the age of 18
  • They have a bona fide pending asylum application on file with USCIS
  • They are a beneficiary of the Family Unity program
  • They have a pending application for either adjustment of status (a green card), an extension of status, or a change of status
  • They have received protection via Temporary Protected Status (TPS), Deferred Enforced Departure (DED), Deferred Action, or Withholding of Removal under the Convention Against Torture

Victims of the following situations do not accrue unlawful presence for the purpose of the 3 or 10-year bars:

  • Individuals who suffered domestic violence from their spouse, or minors who entered on a nonimmigrant visa who suffered violence from their parents and are able to prove a connection between the abuse and the overstay
  • Victims of human trafficking able to prove that the trafficking was at least one central reason for their unlawful presence

Foreign citizens overstaying their permitted time in the USA outside the situations detailed above are likely to have their unlawful presence time adding up and held against them.

What Happens to My EVUS If I Overstay?

When an EVUS holder overstays their authorized period of visit, the US visa stamped in the citizen’s passport by the US Consulate is automatically rendered null. Immigration laws are strictly enforced, so overstaying in the US by even a day will void your current B1/B2 visa. This, in turn, means that your EVUS registration will also be voided.

In addition, foreign visa holders who have stayed beyond their expected departure date from the USA must return to their country of nationality should they wish to obtain a new US visa. Overstaying prevents foreign citizens from being eligible to apply at a US consulate in any other country even though they may be more convenient or closer to the USA.

In the event that there is no US consulate which issues visas in your country of nationality, the Secretary of State has designated a third country where you may be able to apply for a new visa.

Can I Get Deported For Overstaying My EVUS?

EVUS holders who find an employer to sponsor them while they are overstaying their B1/B2 visa will still almost certainly be deported.

Whether an EVUS holder overstays their visa for more than 180 days, or more than 1 year, they will face removal proceedings to be deported from the country.

There are additional consequences —aside from deportation— that depend on the length of the citizen’s overstay in the US.

Overstaying in the US for Less Than 180 Days

Chinese passport holders travelling to the US with an EVUS that overstay but not more than 180 days must promptly leave the US.

Fortunately, in most cases, they will be allowed to apply for another US visa with which they can return to the country immediately.

Overstaying in the US for More Than 180 Days

Citizens who overstay their visa in the USA for more than 180 days but less than one year beyond their authorized period of stay, and who depart from the US prior to the institution of removal proceedings or deportation, are prohibited from re-entering the US for 3 years from their date of departure.

Overstaying in the US for More Than 1 Year

Individuals who overstay in the United States for more than 1 year after their authorized period of stay has terminated, and who depart from the country prior to the institution of removal proceedings, are prevented from re-entering for 10 years from their date of departure.

Can I Get a Green Card After Being Barred From the US?

After 10 years have passed from the date a permanent bar for the US was issued, foreign nationals can request special permission to apply for a US visa or green card.

More Than 1 Year Unlawful Presence

Foreign nationals who accrue unlawful presence of more than 1 year total (not necessarily continuous), or are ordered removed (deported) from the US, and later attempt to enter without inspection (by sneaking across the border, for example), will be permanently barred from the United States with no waiver available except to VAWA self-petitioners.

Can I Extend My Stay in the US After Overstaying?

EVUS holders who remain in the US past their authorized period of stay are commonly barred from extending their stay in the country or changing their status to another nonimmigrant status. These overstayed visitors are often also prohibited from adjusting their status from nonimmigrant to immigrant.

How to Avoid Overstaying in USA

There are several things you need to keep in mind in order to not overstay your US visa or EVUS, including:

  • Checking the expiration date on your I-94 form, that is your expected departure date
  • Leaving the US on or before your expected departure date or within any subsequent Extension of Stay or Change of Status
  • If you need to extend your stay beyond your expected departure date, make sure to file a non-frivolous application for Extension of Stay, Change of Status, or Adjustment of Status before the expiration of your authorized stay
  • If you are entering the US by air or sea, make sure to obtain your automated I-94 information online
  • If you are entering the US by land, keep your paper I-94 Arrival/Departure Record card on hand
  • Make sure your passport is duly stamped when you enter a third country, save your airline tickets, boarding pass, and travel itinerary

When a US visa holder files a non-frivolous application requesting an Extension of Stay, Change of Status, or Adjustment of Status before the period of their authorized stay expires, the citizen will be considered to be maintaining status until a decision is made in regards to their petition. This holds true even if the decision is made after the date stated on the traveler’s I-94 form.

What to Do If You Have Overstayed Your US Visa or EVUS?

EVUS holders who have not been able to avoid overstaying in the US still have several resources at their disposal:

  • Adjusting nonimmigrant status in the US
  • Applying for a waiver after overstaying
  • Applying for a visa after overstaying

Can I Adjust My Status in the US After Overstaying?

Certain foreign nationals may be eligible to adjust their status in the USA unless they have entered the country illegally (without a visa or other lawful admission).

Therefore, it is of utter importance to carry a valid US visa and apply for an EVUS prior to entering the United States.

Although these individuals would be technically eligible for a green card, they would have to apply through an overseas US consulate. At the moment of application, the time bars could be instated by the consulate unless the citizen qualifies for a waiver based on extreme hardship to an eligible US relative.

Fortunately, overstayed foreign nationals can now apply for this waiver before departing the country using Form I-601A. This entails demonstrating that no other grounds of inadmissibility apply to you as well as proving extreme hardship to a US citizen spouse or parent.

In the event that an applicant is granted this "provisional waiver" (also called the "stateside waiver") before leaving for the US consulate, they may have a fair degree of assurance that the consulate will not apply the time bars. Nevertheless, the decision remains solely at the discretion of the consulate, which may also find the applicant inadmissible on other grounds.

Applying For a Waiver in the US

If you have received a 3 or 10-year bar of inadmissibility preventing you from re-entering the United States for overstaying your nonimmigrant visa, you may still be able to apply for a general waiver under section 212(d)(3). This section enables nonimmigrants to request a general waiver for most grounds of inadmissibility

Additionally, the regulations provide a specific waiver available to foreign nationals who are the spouse, son or daughter of a US citizen or permanent resident that have been barred either for 3 years or for 10.

Unfortunately, the visa overstay waiver is not available to foreign nationals who have children who are US citizens or permanent residents.

Requesting the waiver for overstaying visa entails the applicant attesting that their US citizen or permanent resident spouse or parents will undergo ‘extreme hardship’ should the overstayed citizen not be allowed to return to the US. Proving extreme hardship involves taking into account medical, financial, educational, and other factors.

The ‘extreme hardship’ an applicant may suffer is, unfortunately, not recognized as grounds to request the waiver.

Applying For a US Visa After Overstaying

Foreign citizens that have been barred from the US for 3 years that choose to apply for a visa to return to the country must disclose their overstay in the US on their B1/B2 visa application form.

Failure to do so, could be charged with misrepresentation and be subject to a 5-year bar or more. If this is your situation, you could still apply for a waiver of inadmissibility to the US as explained above. The US Waiver process could delay your US Visa application, however, it would be a solution if you have prior immigration violations.

Additionally, should you have ‘extraordinary circumstances’, you may be allowed to apply for a visa at a consulate in a country different to your nationality. In order to do so, you would have to receive the consent of the consulate in this third country before making an appointment and submitting a nonimmigrant visa application.

Overstaying your visa or EVUS is never a recommended route and should be avoided whenever possible. It is advisable to seek the advice of an immigration law attorney should you wish to extend your stay beyond your expected departure date, or if you have overstayed your visa. A lawyer can advise you on the adequate way to avoid deportation from the country as well as other severe repercussions.

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