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OVERSTAYING IN THE U.S. VOIDS YOUR VISA
by Michael J. Gurfinkel, Esq.
If an alien enters the U.S. on a non-immigrant visa
(i.e. visitor's visa) and remains in the U.S. beyond the period
of his authorized stay (the time listed on the I-94 by the INS
officer at the airport), his existing visa will be void,
and he can no longer use that visa to enter the U.S., even if
it is a 10 year multiple. Instead, he would be required to go
back to his home country, to apply for a new visa so he
can enter the U.S. again. This is Section 222(g) of the immigration
laws.
What Does This Law Mean?
Let us take an example of where this law may apply. A person enters
the U.S. on a visitor's visa, valid until the year 2008. At the
port of entry (airport), the INS officer stamps his I-94 (Record
of Entry), allowing him to stay in the U.S. for six months, on
this particular visit. The I-94 would typically have a specific
date by which that alien would be required to leave (the "authorized
period of stay" mentioned in the law).
Under this law, if the alien stays even one day
beyond the period of his "authorized stay" (meaning
past the date for his departure on the Form I-94), then that existing
visitor's visa will thereafter be void. Even though
the visitor's visa may be valid up to 2008, under this law, by
overstaying, that visa is now considered void. In such a case,
the alien will no longer be admissible to the U.S. on that previously
issued visa.
Instead, in order for the alien to be able to enter
the U.S. again as a visitor, or in any other non-immigrant
status, he must have a new non-immigrant visa (i.e. new
visitor's visa) issued at the Embassy (or Consulate), in his home
country. Thus, if you entered the U.S., and stayed beyond
the period of your authorized stay, your existing visa would be
void, and you would be required to go back to the U.S. Embassy
in Manila, to get a new visa, in order to be allowed to re-enter
the U.S.
You should also be aware that when you fill out
an I-94, the INS enters that information in their own computer,
and they maintain a record of your entry. Thus, people who think
they can avoid overstaying by having their passports "backdated"
in the Philippines, are forgetting the fact that the INS has its
own database, which would already have recorded the fact that
they have "overstayed". Thus, upon their return at the
airport, the fact that they overstayed will come up in the computer,
and they could face being sent immediately home.
What If I tried To Enter The U.S. On A "Void"
Visa?
If you attempt to re-enter the United States, after previously
overstaying on an existing visa, and the INS discovers that you
previously overstayed, the INS officer will physically void your
existing visa, by drawing a single line diagonally across that
visa, and stamping it "cancelled". They will also write,
"As required by Section 222(g)", which is the law requiring
the voiding of your visa. You would also not be admissible to
the United States, and could be put on the next flight back to
the Philippines.
What If I Apply For An Extension Of Stay?
Even though people are given a specific date by which they must
depart the U.S. on their I-94, the law still allows people to
apply for an extension of their stay. The INS has stated that
as long as a person filed for an extension of stay before
their original period of authorized stay expired, they may be
considered in status, even if the extension was approved after
the date on their I-94. However, people should also be aware that,
at the present time, the California Service Center in Laguna Niguel,
is now taking almost eight months (260 days) to make a
decision on extensions. So, if a person had filed for an extension
before their I-94 expired, and asked for a six-month extension,
they could, theoretically, find themselves two months out of
status by the time they receive their "approval"
from the California Service Center. This, obviously, could create
complications, until this is clarified by INS.
Conclusion.
Many people who have multiple/indefinite, or 10-year visas had
a very relaxed attitude about when they needed to return to their
home country. Although INS may have given them a "certain
date," by which time they must leave, they thought to themselves,
"what's a day or two more?" Or, they were having such
a good time in the U.S. that they forgot to leave on time.
Well, now you can see that the consequences can
be very harsh if you overstay by even one day. This is
because your existing visa would be cancelled, and you would be
required to go back to the U.S. Embassy in Manila, to apply for
a new visitor's visa (or other type of non-immigrant visa). In
that case, you could well imagine how receptive the Consular Officer
would be to issuing a new visa, when the previous visa
was cancelled, because you had overstayed. So, be careful.
Make sure you leave on time, and document your departure
(i.e. get your passport stamped when you arrive back home, save
your airline tickets, etc.).
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