Consequences of Overstaying a Student Visa

Consequences of Overstaying a Student Visa

Overstaying one’s temporary U.S. visa is something immigration officials take very seriously. According to U.S. immigration law, a person who overstays their visa is residing in the country illegally and treated similarly to someone who entered the country illegally – it is a serious matter that should be avoided. However, for some student visa holders, the expiration of their allowed stay may not be as obvious. If you have already overstayed your visa, consult with a Miami immigration attorney to learn more about your options. Below, we will review the potential consequences of overstaying a student visa.

Authorized Period of Stay

Many are unaware that the expiration date on a visa is not what determines a nonimmigrant’s authorized period of stay, the date shown on the card is actually the last day that the card can be used to enter the U.S. The expiration for the stay is specified on the Form I-94 Arrival/Departure Record card or downloadable online document, given by Customs and Border Protection (CBP) officials to those who enter the U.S. If the visa holder stays beyond that date, they are guilty of overstaying.

However, nonimmigrants who enter on an F-1 or J-1 student visa are not given a specific date on their I-94 cards and online records. Instead, the I-94 will say, “D/S” which stands for Duration of Stay. Taking into account that the duration of many academic programs is not fixed, D/S allows for F-1 and J-1 students to stay until their studies program is complete and the grace period ends, assuming that the visa holder is fully compliant with the rules of the visa. If students stay past the allowed period and make no effort to apply for a Change of Status within a reasonable time, they are likely “Out-of-Status,” and therefore overstaying.

Consequences of Overstaying

The following are possible consequences of overstaying a student visa.

    • Existing visa is automatically voided and can no longer be used to enter the U.S.
    • Restricted from applying for an Extension of Stay or Change of Status
    • Cannot obtain another visa at any U.S. consulate outside of country of nationality
    • Barred from re-entering the U.S. for three to ten years if “unlawful presence” accrued

Unlawful Presence and Time Bars

One of the harshest consequences of overstaying a student visa is a time bar. Those guilty of overstaying are only subject to time bars if they are deemed inadmissible for accruing “unlawful presence,” meaning they overstayed for more than 180 days. For M-1 students, it is easy to determine whether unlawful presence has occurred because the accrual to time starts after the specific “Out-of-Status” date in their I-94.

On the other hand, F-1 and J-1 students can only be guilty of unlawful presence if U.S. Citizenship and Immigration Services (USCIS) or a related government authority formally determines they were residing in the country unlawfully. Only after that official determination is made does the counting off of days start for F-1 and J-1 students. Thus, F-1 and J-1 student visa holders are rarely subject to any of the two types of time bars.

        1. Three-Year Time Bar — Unlawful presence of more than 180 days but less than one year.
        2. Ten-Year Time Bar — Unlawful presence of more than one year.

The best course of action for nonimmigrants should be to avoid overstaying a student visa. However, if you or a loved one has overstayed a temporary U.S. visa, consult with a knowledgeable Miami immigration attorney.

Out team of U.S. immigration law professionals is experienced at defending our clients from deportation as well as having grounds of inadmissibility waived. Call Pimentel & Castillo today for a free consultation.

An Overview of One’s Rights at Customs

An Overview of One’s Rights at Customs

Travel restrictions are not new in the United States, but the latest ones have stirred some  controversy. Consequently, many passing through customs are unsure of their rights. Many would be surprised to learn that even American citizens returning from countries where the U.S. has introduced constraints may be subject to intensified searches. In light of this, being well informed about one’s rights and even consulting with a Miami immigration attorney prior to traveling is of the utmost importance.

If the individual is a legal permanent resident…

The most important thing for legal permanent residents to keep in mind when undergoing a secondary inspection is that typically the right to live in the U.S. cannot simply be revoked at the border. However, that does not mean customs officers will not subject legal residents to questioning. Many may prefer to have an attorney present for such questioning, but unfortunately, not everyone will have that right. As it stands now, only U.S. citizens are able to ask that an attorney accompany them during this process. Those who simply hold a visa (even though a legal, and sometimes permanent, resident), do not hold the right to an attorney.

As for the search itself, every individual passing through customs must permit to a search upon request since 9/11. This includes one’s electronic devices, a fact which stirred up some controversy at the onset of the “travel ban.” Furthermore, the officers are even permitted to ask for access to social media profiles and other online accounts, such as email, as well as photos and documents on the device. However, the law has yet to catch up to this aspect of the procedure. There is no clear-cut law that allows such a search to occur, so assistance from a Miami immigration attorney in these instances is advisable whenever the situation allows for it — particularly given the fact that failing to consent to a search could present added problems. Green card holders could face a hearing where their resident status could be revoked, and even U.S. citizens could be held by the officers or have personal belongings seized.

If the individual is NOT a legal permanent resident…

For those who do not hold legal permanent resident status, there are fewer rights when passing through U.S. customs. Such individuals do not have the opportunity to consult with a lawyer, unless the person has been formally charged with a criminal act. However, that does not mean a skilled Miami immigration attorney cannot circumvent this. If traveling to the U.S. from a country that has been identified within legislation restricting entry to visitors, arranging for legal counsel prior to arriving at customs can go a long way. This is primarily due to the fact that failure to consent to a search in these cases could lead to a refusal of entry.

If you have questions or concerns about your rights at the border, call our office today to speak with an experienced member of our team. We are always here to guide you and protect your rights.