Visa Overstay Forgiveness, Explained

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What is visa overstay forgiveness?

If you’re a visa holder and you remain in the United States past the “admit until date” listed on your Form I-94 (also called the “Arrival/Departure Record”), you are overstaying your visa. If this happens, you can get visa overstay forgiveness by applying for a waiver. To do this, you will need to show that you have valid reasons for remaining.

Note that the visa expiration date does not determine when you need to leave the country. While your actual visa may have an expiration date that is 5 years from now, your I-94 may show a validity period of only 6 months. You would, in this case, be required to leave the United States within 6 months after your admission into the country.

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Unlawful Presence Overview

What is Unlawful Presence?

If you have overstayed your visa, you may be considered unlawfully present. As per section 212 of the Immigration and Nationality Act (INA), there are two types of unlawful presence:

• Remaining in the United States without first being paroled or lawfully admitted
• Remaining in the United States beyond the time allotted by the Department of Homeland Security (DHS)

For our purposes we will focus on the second type of unlawful presence (also known as overstaying a visa). In most cases, you must leave the United States by the “admit until date” listed on your Form I-94. If, however, you are in the United States as part of a program, you may find “D/S” (or duration of status) listed as the “admit until date.” This means you must leave the United States once you are finished with your program, temporary work, or course of study – or after any applicable grace periods. You may, alternatively, in this case, start a new program if that option is available to you.

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Grounds of Inadmissibility

Depending on how many days of unlawful presence you’ve accrued, you may be barred from entering the United States for either 3 years, 10 years, or forever.

3-year ground of inadmissibility: You may not be permitted to enter the U.S. for 3 years, if you’ve accrued over 180 days but less than a year of unlawful presence and you’ve left the United States prior to removal proceedings. If you leave the United States after the removal proceedings begin, there’s a chance you may not be deemed inadmissible. This depends, however, on the outcome of the proceedings.

10-year ground of inadmissibility: You may be barred from entering the United States for 10 years, if you have accrued more than 1 year of unlawful presence during one continuous trip and have already left the country. It does not matter in this case if you’ve departed before or after the beginning of removal proceedings.

Permanent ground of inadmissibility: You may not be allowed back into the United States if you have accrued a total of more than 1 year of unlawful presence over the course of several trips and have left the country. Note that, in this case, If you’ve already been out of the country for 10 years and you’d like to gain entry into the United States, you may request permission to reenter by submitting Form I-212 (officially called the “Application for Permission to Reapply for Admission into the United States after Deportation or Removal”). In some cases, you may also be able to obtain a waiver using Form I-601 (officially known as the “Application for Waiver of Grounds of Inadmissibility”), which we’ll discuss in the next section.

Note: These grounds of inadmissibility apply to cases that occurred on or after April 1, 1997.

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Exemptions

There are certain scenarios in which you may be exempt from accruing days of unlawful presence:

• You are in the process of applying for asylum
• You are a child under 18 years of age
• You are a beneficiary of the Family Unity program
• You are a spouse who has been subject to physical abuse and have submitted a claim under the Violence Against Women Act (VAWA) and have demonstrated a link between the violence and the unlawful presence
• You have been subject to severe human trafficking

Note: The last two bullet points apply only to the 3- and 10-year grounds of inadmissibility.

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Overstay Forgiveness Eligibility

If barred from entering the United States due to the grounds of inadmissibility mentioned in the previous section, you may apply for visa overstay forgiveness by filing Form I-601. As stated in the Form I-601 filing instructions, your ability to obtain a waiver will depend on both the reason for inadmissibility and the type of benefit for which you’re applying. Below is a list of benefit types that pertain to Form I-601.

Immigrant, K or V nonimmigrant visas: If you are outside the United States, have already attended a visa interview, and have been deemed inadmissible, you may be able to obtain a waiver. Those applying for a green card through the adjustment of status process may also be eligible for a waiver. For more information, read the Boundless guide on the K-1 visa.

Temporary Protected Status (TPS): If applying for TPS, you may be able to apply for a waiver of grounds of inadmissibility.

Adjustment of Status under Haitian Refugee Immigration Fairness Act (HRIFA) 902 or Nicaraguan Adjustment and Central American Relief Act (NACARA) 202: If applying for an adjustment of status under these statutes, you may be able to obtain relief.

Immigrant visa or adjustment of status under VAWA: If applying for an immigrant visa or adjustment of status as a self-petitioner (or self-petitioner’s child) under VAWA, you may be eligible for a waiver.

Adjustment of status from a T nonimmigrant status: If you have a T nonimmigrant status and are applying for adjustment of status, you may be able to get a waiver.

Adjustment of status as a Special Immigrant Juvenile (SIJ) on the basis of an approved Form I-360: If you are considered an SIJ, have an approved I-360, and are applying for adjustment of status on these bases, you may be able to obtain relief.

Each benefit type is limited in terms of which grounds of inadmissibility can be waived. You may, for instance, apply for a waiver of the 3-year or 10-year grounds of inadmissibility if you’re seeking a green card through the standard adjustment of status process, but if you’re applying for an adjustment of status under HRIFA 202 or NACARA 902, you may not. For a more granular breakdown of the eligibility criteria, read the “Who May File Form I-601?” section of the Form I-601 filing instructions.

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Alternative Routes

You may be able to get a provisional waiver using Form I-601A (also called the “Application for Provisional Unlawful Presence Waiver”) if you are:

• At least 17 years old
• Present in the United States
• Deemed inadmissible under the 3- or 10-year grounds of inadmissibility and have an ongoing immigrant visa case

Note: Be sure to read the instructions for filing Form I-601A for more information regarding the application criteria.

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Overstay Application Process

Complete the form: When filling out I-601, you will need to complete the entire form and sign it in black ink.

Attach the evidence: As part of the application, you will need to include evidence showing why you should receive a waiver. The evidence should demonstrate that the reasons for granting the waiver outweigh the reasons for denying it. You may also attach a letter with an explanation of your request.

You can include the following types of evidence, if applicable:

• Affidavits written by friends or family
• Proof that foregoing a waiver would result in extreme hardship
• Medical records
• Evidence of familial relationships

When applying for a waiver of the unlawful presence grounds of inadmissibility, you will likely need to demonstrate that, in your absence, a qualifying U.S. citizen, permanent resident, or K visa relative will experience extreme hardship. In this case, you’d have to prove both familial relation and extreme hardship. The following factors may be considered by U.S. Citizenship and Immigration Services (USCIS) when determining whether your family member will experience extreme hardship:

• That the health of the family member requires continuous treatment and care
• That the educational opportunities will diminish
• That the family member is concerned about being persecuted or ostracized
• That the financial well-being of the family member is at stake – for instance, if there’s a sharp decline in the standard of living
• That the personal life of the family member will greatly suffer

Attend the biometrics appointment: You may need to attend a biometrics appointment, in which case you’d have to supply a signature, photograph, and fingerprints. USCIS may also need to conduct a background check, which will likely include a review of any criminal records. USCIS will inform you as to whether you need to attend such an appointment after you submit the application.

Pay the fees: When submitting Form I-601, you must attach the appropriate fees. See the next section for more information regarding fees.

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The Costs of Applying for Overstay Forgiveness

The cost will vary depending on which form you’re using to obtain forgiveness. If submitting Form I-601 or I-212, you will need to pay a filing fee of $1050, but if using Form I-601A, you will need to pay a $795 filing fee and an $85 biometrics fee.

Note: Form I-601 may require a biometrics service fee of $85, if such an appointment is necessary.

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