People come to the US on various types of short-term authorisation, broadly classified as non-immigrant visas or other documentation. These can include visitors’ visas, work permits (for students who must only work part-time, for full-time employment) and other types of authorisation.
Once the time that you were authorised to stay in the US expires, then the US Government expects that you will immediately leave the country. The time that begins to pass is called being “out of status”.
Dependent on the authorization, you might have what is called a grace period. This is often a very small window during which you can make efforts to renew your authorisation. So it is important to know what type of authorisation you have.
As an example, persons who are in the US on visitors’ visa can ask for an extension of stay. This must be requested before the period that is in their digital I-94, expires. The I-94 is found online at here.
The application must be done using the correct government form and must indicate a compelling reason for the extension being requested. Remember, too, that a visitor’s visa does not allow the holder to have any type of employment and expects that holders return to their country after a short visit.
Persons who come to the US on visitors’ visas cannot ask for an extension after their lawfully allowed time has passed. Simply having a visa that says multiple entries or one that expires several years in the future is not enough. So please do not make these applications or worse yet pay to have these applications submitted.
Persons who come to the US on any type of non-immigrant visa that have expired do not qualify for any benefit under that visa. There is a myth that these travellers can simply pay the government for a work permit. That is not true. These persons are going lose the money paid to anyone helping them, won’t be refunded the government fee, and they are going to be denied. In fact, they also risk being put in immigration court for visa overstay and face deportation.
Remember that the moment you have fallen out of status, you are expected to leave the US immediately. This is a warning to students in particular. Students on the F1 student visa who drop out of their programmes before they end are sometimes caught by this. They think that because their student visa provides several years authorisation, they can easily stop attending school and still be authorised to stay in the country. That is incorrect.
The best thing to do if there are problems with a programme is to talk with the designated school officers and try to figure out a solution instead of dropping out of school.
If you remain in the country after being out of status and decide to return home, without having an approved waiver (obtained by seeking another immigration benefit), you will become subject to entry bars. Dependent on the period of time you spent in the US, you might be subject to the three, five or even 10-year ban.
Having returned voluntarily to your country after being out of status in the US is no guarantee that you will be automatically approved if you apply for another type of non-immigrant visa. Where such persons apply for immigrant visas, there are also stipulations that they have to observe before approval.
Notably, in some cases, persons may be able to change their status. To do so, for example, from a student visa to working as someone who has a degree that was acquired in the USA as a student and you have been offered employment by a US company that has met all of the eligibility requirements, the process is possible.
Sometimes people face persecution in their home countries and come to the US and overstay. They might qualify for asylum. However, an asylum application has to be made within one year of entry to the country and requires substantial proof of the persecution that was faced or could be faced if one returned to the home country.
Failure to prove the case means possible deportation.
In other scenarios, persons who overstay may be able to become lawfully authorised to stay after an application by a US citizen spouse or US citizen child. There are some criteria that must be met and so these issues cannot be dealt with lightly.
Persons who have overstayed and have criminal law issues must ensure that they advise their criminal case attorney that they are out of status and request that the attorney gets advice from an immigration attorney about how to proceed, because criminal law convictions (whether on a plea or conviction after trial) can lead to deportation and make accessing immigration benefits infinitely more difficult.
*This article does not constitute legal advice and is intended for informational purposes only.
Nadine C Atkinson-Flowers is admitted to practice in the USA and Jamaica. Her US practice is in the area of immigration, while her Jamaican practice areas include immigration and general legal consultancy. She has been an attorney for over 15 years in Jamaica and has written articles for several legal publications. She is passionate about access to justice issues and volunteers with several legal, business, children and community service organisations in Jamaica and the US. She can be contacted at [email protected]