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I Overstayed my Visa

Can I come back to the United States?

This is a common scenario, visa overstay. Section 222(g) of the Immigration and Nationality Act states that:

In the case of an alien who has been admitted on the basis of a nonimmigrant visa and remained in the United States beyond the period of stay authorized by the Attorney General, such visa shall be void beginning after the conclusion of such period of stay.

An alien described in paragraph (1) shall be ineligible to be readmitted to the United States as a nonimmigrant, except

on the basis of a [new] visa (other than the visa described in paragraph (1)) issued in a consular office located in the country of the alien's nationality (or, if there is no office in such country, in such other consular office as the Secretary of State shall specify); or

where extraordinary circumstances are found by the Secretary of State to exist.

Overstay and D/S status for students.

For students and others with D/S duration of status, quite often there is no date certain that you must leave the United States, instead, you must leave after completing your program. Therefore, the answer as to whether 222(g) will prevent you from returning is not so clear. Below are several fact patterns that should help you determine whether you are considered to have overstayed your visit. Be sure to read through each scenario before concluding which situation best fits your case. If you just stop reading after finding the first thing that appears to fit your case, you may miss a possible exception later in the article:

  • Alien admitted until specified date, maintains status, departs by date specified: not subject to 222(g)
  • Alien admitted until specified date, maintains status, departs after specified date: subject to 222(g)
  • Alien admitted until specified date, violates status, departs by date specified: not subject to 222(g) unless INS or Immigration Judge has found a status violation
  • Alien admitted until specified date, violates status, departs after specified date: subject to 222(g)
  • Alien admitted until specified date, stays beyond specified date but is granted voluntary departure (V/D): subject to 222(g), regardless of whether he/she complies with V/D order
    Alien admitted until specified date, is found by INS or IJ to have violated status but is granted V/D and leaves prior to both date on I-94 and date specified in V/D order: subject to 222(g)
  • Alien admitted for duration of status (D/S), maintains status and departs: not subject to 222(g)
  • Alien admitted for D/S, violates status: not subject to 222(g) unless INS or Immigration Judge has found status violation
  • Alien admitted for D/S, is found by INS or IJ to have violated status but is granted voluntary departure: subject to 222(g), regardless of whether departure is before or after V/D order expires
  • Alien admitted until specified date, applies for extension of change of status within applicable time limit prior to expiration of I-94, remains in U.S. after date on I-94 but INS subsequently approves application: not subject to 222(g)
  • Alien admitted until specified date, applies in timely fashion for extension or change of status, remains in U.S. after date on I-94 expires and application is subsequently denied: subject to 222(g)
  • Alien admitted until specified date, applies in timely fashion for extension or change of status, departs U.S. after expiration of the I-94 but before a decision on the extension/change of status application: subject to 222(g)
  • Alien admitted until specified date, files late application for change or extension of status, INS accepts late application because alien establishes that late filing was for good cause and otherwise satisfies the requirements for retroactive approval, and application is ultimately approved: not subject to 222(g)
  • Alien entered on VWPP, on parole, without inspection, or otherwise without an NIV: not subject to 222(g), regardless of whether alien overstays or violates status

As you can see, determining whether you are subject to 222(g) takes some analysis. In addition, there may be issues of three and ten year bars on returning, depending on how long you overstayed your status. If you have any doubt about your situation, you should speak with an immigration attorney.