Effect of Overstay for Visa Issuance

Since October 1, 1996, any person who has “overstayed” (remained in the U.S. past the expiration date on his/her latest I-94 card), even for a single day, has been no longer eligible to apply for the nonimmigrant (temporary) visa from a country other than her/his home country. This is because the law automatically voids the visa stamp in the passport as soon as one falls out of status or continues to remain illegally in the United States.

On September 30, 1996 President Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRA of 1996”). Section 632 provides that a nonimmigrant visa is VOID as soon as the nonimmigrant applicant overstays his/her period or authorized stay. [This section has been incorporated into the Immigration and Nationality Act (“INA”) as Section 222(g)]. The result is that one who is “guilty” of remaining beyond the allowed period is not eligible to be readmitted as a nonimmigrant, except on the basis of a new visa issued by the consular office in the nonimmigrant’s home country. The visa may only be issued elsewhere if “extraordinary circumstances” exist.

The U.S. Department of State (DOS) has acknowledged that historically it has been very difficult to prove a nonimmigrant has overstayed her/his I-94. If the consular officer has reason to believe that an overstay has occurred, the burden falls to the foreign national to produce sufficient documentation to convince the consular officer that there has been no overstay.

A consular officer generally would be able to presume that there was an overstay by inspecting the passport, by reviewing the answers to certain questions on the nonimmigrant visa application form, or by an obvious break in the status, as evident from the documents submitted. Further, now that US-VISIT and other methods are in use to keep track of nonimmigrant travel into and from the United States, the DOS is better able to determine whether an overstay has occurred. If the U.S. Citizenship and Immigration Services (USCIS) refused to grant a change- or extension-of-status in the U.S., the consular officer would also have reason to suspect a failure on the part of the nonimmigrant to maintain valid legal status while s/he was in the United States.

Students & Exchange Visitors

A nonimmigrant who has “D/S” (duration of status) rather than a specific expiration date marked on the I-94 card in the passport, is only found to have overstayed if the USCIS or an Immigration Judge has made that determination. Those given D/S are generally F-1 or M-1 students, and J-1s.

Stateless Persons and Dual Nationals

Dual foreign nationals and nonimmigrants who are considered stateless are generally allowed to apply for a visa either at a Consular post designated by the DOS or at a post in the country where the nonimmigrant has the equivalent of lawful permanent resident status, if any. The DOS takes the position that one who is deemed to be stateless shall be considered a national of the country which issued that individual’s travel documentation.

“Extraordinary circumstances” have been defined to be humanitarian cases not within the reasonable control of the visa applicant. This is a very high standard to meet.

Conclusion

To summarize, pursuant to IIRA of 1996, which became effective October 1, 1996, a person who has overstayed in the United States, beyond the time allowed by his/her status expiration on the I-94 card, even for a single day, is generally not allowed to apply for the nonimmigrant “temporary” visa in a country other than the home country. It is important to understand the consequences of leaving the U.S. or filing for a change- or extension-of- status before one’s status expires. Speak to an experienced immigration attorney regarding any status questions.

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