1. What is the difference between unlawful presence and visa overstay?

Unlawful presence is the physical presence in the United States after a person’s visa or other authorized stay has expired. Visa overstay is when a person remains in the US beyond the expiration date of their visa and has not been granted an extension of stay or any other authorization from U.S. immigration authorities to remain in the country.

2. What are the consequences of an unlawful presence or visa overstay in the U.S.?

The consequences of an unlawful presence or visa overstay in the U.S. can range from a warning to deportation. Depending on how long the unlawful presence or visa overstay was, the individual may also be subject to a 3 or 10 year bar on returning to the U.S. In addition, an individual who has been unlawfully present in the U.S. for more than 180 days but less than one year, who then leaves the U.S., may be ineligible to return for 3 years. Those who have been unlawfully present in the U.S. for more than one year and then leave, may be ineligible to return for 10 years.

3. How long does an unlawful presence or visa overstay stay on an individual’s record?

An individual’s record of unlawful presence or visa overstay can stay on their record for a variable amount of time. Generally, it can remain on their record from three to ten years, depending on the circumstances of the unlawful presence or visa overstay.

4. How is unlawful presence or visa overstay determined by U.S. immigration authorities?

Unlawful presence or visa overstay is determined by U.S. immigration authorities by reviewing the individual’s Form I-94 Arrival/Departure Record and travel documents. Immigration officials will also use a variety of other factors to determine whether or not an individual has overstayed their visa, such as the date they entered the U.S., how long they have been in the U.S., and if they have any valid extensions of their stay or other evidence that they are in compliance with their visa status.

5. How can an individual end their unlawful presence or visa overstay in the U.S.?

An individual who has overstayed in the U.S. must leave and re-enter the country through a valid visa. Alternatively, the individual can apply for a green card or other form of lawful permanent residency. In some cases, an individual can apply for a waiver of inadmissibility to return to the country after having been unlawfully present in the U.S. for more than 180 days. In addition, individuals who have been in unlawful status for more than one year must obtain permission from the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) before they can return to the U.S.

6. Are there any waivers available for individuals with an unlawful presence or visa overstay?

Yes, there are waivers available for individuals with an unlawful presence or visa overstay. The most commonly used waivers are the I-212 waiver and the 212(d)(3) waiver. The I-212 waiver is used for those who have been previously denied entry into the United States or who have been previously deported. The 212(d)(3) waiver is commonly used for those with a visa overstay or unlawful presence in the U.S. Both waivers are discretionary, meaning they can be denied by the government if they believe it is in the best interest of the United States to do so.

7. How long does a person have to remain outside the U.S. before they can re-apply for a visa?

A person is generally required to wait 3 years after departing the U.S. before they can apply for a new visa. However, depending on the individual’s circumstances, the wait time can be longer or shorter. An individual should consult with an immigration attorney to get more specific information about their case.

8. Can an individual work while unlawfully present or on an overstayed visa?

No, an individual cannot work while unlawfully present or on an overstayed visa. It is illegal for employers to hire any individual who is not authorized to work in the United States. Doing so can result in penalties and fines for the employer, as well as possible deportation for the individual.

9. How is unlawful presence different for immigrants and non-immigrants?

Unlawful presence applies to both immigrants and non-immigrants. For immigrants, it is when they are present in the United States without having been lawfully admitted or lawfully present under a nonimmigrant visa. For non-immigrants, it is when they remain in the United States beyond the period of authorized stay or violates any of the terms of admission.

10. Are spouses of immigrants in an unlawful presence or with an overstayed visa subject to the same consequences?

Yes, spouses of immigrants who are in an unlawful presence or have overstayed a visa are subject to the same consequences as the immigrant. They may be barred from re-entering the United States for a certain amount of time, and may even be barred indefinitely. Additionally, family members may also be subject to deportation and other legal repercussions.

11. What are the penalties for employers who knowingly hire individuals in an unlawful presence or with an overstayed visa?

Violations of the Immigration and Nationality Act (INA) related to hiring, recruiting, or referring individuals who are not authorized to work in the U.S. can result in civil penalties for employers. Depending on the severity of the violation, an employer may be liable for fines ranging from $375 to $16,000 per individual hired, as well as possible criminal charges.

12. Can individuals in an unlawful presence or with an overstayed visa receive public benefits?

No. Individuals who are in the US without authorization or who have overstayed their visa are not eligible for any public benefits.

13. How can immigrants remedy their lawful status if they are in an unlawful presence or have an overstayed visa?

Immigrants in an unlawful presence or who have overstayed their visa can apply for a form of immigration relief, such as cancellation of removal or asylum, in order to remain in the United States legally. Additionally, if an immigrant has family members who are U.S. citizens or legal permanent residents, they may be able to apply for a green card through a family-based immigrant petition. In some cases, those who have overstayed their visa may also be able to adjust their status to legal permanent resident while in the United States.

14. What other immigration options are available to people in an unlawful presence or with an overstayed visa?

Other immigration options available to people in an unlawful presence or with an overstayed visa include:

1. Applying for an immigrant visa through consular processing.
2. Applying for asylum or refugee status.
3. Applying for a U-Visa, which is designed to protect victims of certain types of crimes.
4. Applying for a T-Visa, which is designed to protect victims of human trafficking and other forms of exploitation.
5. Applying for a family-based immigrant visa if you have a qualifying relationship with a U.S. citizen or permanent resident.
6. Applying for the Deferred Action for Childhood Arrivals (DACA) program that allows certain undocumented immigrants who arrived as children to remain lawfully in the United States without fear of deportation.
7. Participating in the Limited Immigration Opportunity Act (LIOA), which allows certain people who have been in the United States since at least January 1, 2010 to apply for lawful permanent residence via adjustment of status.
8. Applying for a cancellation of removal, if you can demonstrate that you have been continuously physically present in the United States for at least ten years, that your removal would cause exceptional and extremely unusual hardship to your spouse, parent, or child who is a U.S. citizen or lawful permanent resident, and that you have not been convicted of certain enumerated aggravated felonies or related offenses.
9. Applying for a waiver of inadmissibility, if you can demonstrate that your presence in the United States would not be contrary to the public interest, and that your absence from the United States would create extreme hardship to your qualifying relative who is a U.S citizen or lawful permanent resident.
10. Applying for adjustment of status through a private bill passed by Congress with respect to your particular case and situation.

15. How will being in an unlawful presence or with an overstayed visa affect future immigration applications to the U.S.?

Being in an unlawful presence or with an overstayed visa can greatly damage future immigration applications to the U.S. If an applicant has been in the U.S. for more than six months, they will be subject to a three-year ban in which they will be unable to enter the country. Additionally, if they have been in the U.S. for more than one year, they will be subject to a ten-year ban. These bans can be difficult or impossible to waive, so applicants should make sure to keep their visas up-to-date and avoid overstaying their visas if possible.

16. Are there any automatic bars to re-entry for individuals who have been in an unlawful presence or have had a visa overstay?

Yes. Depending on how long a person has been in the United States unlawfully, they may be subject to the 3-year, 10-year, or permanent bars to re-entry. The 3-year bar applies to those who have been unlawfully present in the U.S. for more than 180 days but less than one year. The 10-year bar applies to those who have been unlawfully present in the U.S. for more than one year. The permanent bar applies to those who have been unlawfully present in the U.S. for more than one year and who have also attempted to re-enter the U.S. without authorization after being removed or deported. Aliens can also be subject to re-entry bars due to visa overstays if they have stayed in the U.S. longer than their authorized period of stay.

17. What is a Voluntary Departure Order and what does it mean for those who have been in an unlawful presence or had a visa overstay?

A Voluntary Departure Order is an order issued by the government that requires an individual who has been in an unlawful presence or had a visa overstay to leave the country at their own expense. This order may be imposed by the Department of Homeland Security or the Executive Office for Immigration Review, and it grants individuals time to voluntarily depart from the United States. The length of the departure time is determined on a case-by-case basis, but it generally ranges from 60 to 120 days. A Voluntary Departure Order also prevents individuals from being barred for up to 10 years for unlawful presence, as would otherwise be the case.

18. Can individuals who have been in an unlawful presence be removed from the U.S.?

Yes, individuals who have been in an unlawful presence in the United States can be removed from the country. Individuals who have been unlawfully present in the U.S. for more than 180 days but less than one year may be barred from reentering the country for three years. Individuals who have been present in the U.S. unlawfully for one year or more may be barred from reentering for 10 years unless they are granted a waiver or other form of legal relief.

19. Is lawful permanent residence (a green card) affected by being in an unlawful presence or with a visa overstay?

Yes, being in an unlawful presence or with a visa overstay can affect lawful permanent residence (a green card). Individuals who have been present in the United States without authorization or who have overstayed their visa may be ineligible for a green card. They may also face other consequences, such as deportation or the denial of a visa or other immigration benefits.

20. What legal assistance is available to individuals who have been in an unlawful presence or with a visa overstay?

Individuals who have been in an unlawful presence or with a visa overstay can seek legal assistance from immigration attorneys. They may also seek assistance from non-profits which provide free or low-cost legal advice and representation. Additionally, the American Immigration Lawyers Association (AILA) provides a listing of attorneys working on immigration matters.